I can hardly keep up. In 2017 alone, there have been five federal court decisions ruling in favor of employers in cases where employees failed to follow call-in procedures pursuant to which they were required to notify both the employer and the outsourced absence management provider when they intended to take FMLA leave. The most recent case is Acker v. General Motors, LLC (5th Cir. 4/10/17).
In Acker, the employee was approved for FMLA intermittent leave and was required to contact (1) the internal GM Absence Call in Line at least 30 minutes prior to his start time and (2) the external FMLA leave call line by the end of the normally scheduled work shift. On a number of occasions, he failed to call the FMLA leave line, and he was subject to disciplinary action under GM’s attendance policy, including that he was placed on unpaid suspensions from work. The employee still worked for GM and brought suit to recover damages for the unpaid suspensions. The court concluded that he was properly subject to discipline for these absences -- even though the employee testified that his disability caused him to experience severe disorientation, blackouts, grayouts and extreme fatigue. The court observed that the employee presented no evidence that he was experiencing any of these symptoms or that there other unusual circumstances on the days that he failed to call the FMLA leave line.
The other recent cases with similar rulings are:
1. McKenzie v. Seneca Foods Corporation (W.D. Wisconsin 3/27/17)
2. Scales v. FedEx Ground Package System, Inc. (N.D. Illinois 1/24/17)
3. Alexander v. Kellogg USA, Inc. (6th Cir. 1/4/17)
4. Duran v. Stock Building Supply West, LLC (9th Cir. 1/12/17)
5. Perry v. American Red Cross Blood Services, TVA Region (6th Cir. 06/01/16)
I have addressed these earlier cases in prior Linkedin articles.
What should employers do? That depends. Some employers do not want to have a corporate culture that requires strict adherence to call-in requirements for purposes of taking FMLA leave. Indeed, some employers want to help employees get their leave requests filed. Interestingly, the regulations recognize that such workforces exist, and contain a provision explicitly stating that employers can waive the notice requirements.
However, especially with regard to intermittent leaves, effective notice requirements can help reduce the abuse of intermittent leave. If notice is not required, employees may feel at liberty to justify unexcused absences after-the-fact on the ground that they were FMLA protected. If employers are interested in being able to point to failure to follow call-in requirements as a grounds for denying FMLA leave and taking disciplinary action, they should bear in the mind the following:
- The notice procedures should be in writing and be clear.
- There needs to be excellent evidence that the employee was aware of the notice procedures. To that end, the notice procedures should be communicated in writing as many ways as possible: (1) employee handbooks; (2) employee websites; (3) approval letters; (4) individualized emails to employees.
- The notice procedures need to be enforced on a consistent basis. If employers waive the notice procedures for some employees but not others they are at risk for a selective enforcement claim.
- Employers should be willing to carefully evaluate whether “unusual circumstances” exist to justify a failure to follow the notice procedures.
It may be useful for an employer to review and update its call-in procedures even if it is not certain that it intends to vigorously enforce them. These call-in requirements can act as a deterrent for FMLA abuse.