Employers are free to set neutral call-off policies that punish even-protected absences. Just make sure you enforce your rules fairly and consistently. Don’t punish some employees but not others.
Recent case: Richard worked as a radiology technician at a medical facility. The employer had strict call-off procedures to ensure that it had adequate coverage. Employees who were scheduled to work but who couldn’t come in had to call a supervisor at least two hours before the start of their scheduled shift. If they didn’t follow that rule, they earned a disciplinary mark. On the fourth mark, the punishment was discharge.
One day, Richard was scheduled to work but decided he needed to go to the doctor for a long-standing medical problem. He arranged for a co-worker to cover his shift, but never called his supervisor to let her know. As a result, she issued a disciplinary mark against his record for violating the call-off policy. It was his third offense.
A few months later, Richard again faced discipline. This time, he was informed that he had incorrectly processed a CT scan. That violated a different rule.
The next day, he went out on. He was terminated when he returned, based on the company’s four-strikes policy.
He sued, alleging that he should not have been punished for the call-off. He argued that he had a serious health condition under the FMLA that had to be treated. Since that’s why he couldn’t come in, it should not have counted against him.
The court dismissed his case. It reasoned that thepolicy that dictated employees must call two hours before their scheduled shift was an independent and unrelated discipline reason. It didn’t matter that he had a good FMLA reason for missing work. He could still have made the call. (Beese v. Meridian Health, et al., No. 14-3627, 3rd Cir., 2015)