FMLA-Protected Employees Usually Need To Follow Absence Reporting Procedures

We’ve received a number of calls lately from employees who have Family and Medical Leave Act (“FMLA”) intermittent leave available but are receiving attendance points and discipline, even being fired, for not properly reporting their intermittent FMLA absences per their employers’ policies and procedures. Their question is always whether the employer can mandate adherence to call-in procedures even though the employer knows that the employee has intermittent FMLA leave available. Let’s discuss that.

The answer to this question is a little complicated. There are no bright-line rules. But generally, employees should plan to follow their employers’ call-in procedures when claiming an intermittent FMLA absence, absent a very good reason for failing to comply.

The United States Department of Labor has recognized that, as much as practical, employers need to have some level of certainty in planning their operations and scheduling employees relative to FMLA leave requests. Consequently, the Department of Labor’s rules require that some sort of notice to the employer, whether for regular FMLA leave or intermittent FMLA, is usually required in order for an employee to secure the FMLA’S protections for an absence related to a serious health condition. Those rules become especially important for intermittent FMLA absences because courts have held that employees can be disciplined and fired for not properly reporting the use of FMLA intermittent leave.

The first thing to note is that an employer can demand that an employee claiming an intermittent FMLA absence specify that the time off is for the serious health condition that led to the intermittent leave and that the absence should be designated as FMLA intermittent leave. An absence is not necessarily FMLA-protected if it’s for a health condition other than that for which FMLA intermittent leave was granted. Nor is protection automatically available if the employee fails to specify that the time off is an intermittent FMLA absence.

Further, absent “unusual circumstances” employers can enforce their usual and customary absence reporting policies procedures against employees using FMLA intermittent leave. The employer’s standard mandates regarding when the absence notice must be made, to whom it must be made, and how it must be made apply to intermittent FMLA absences. As suggested by the phrase “unusual circumstances,” this is the default rule. An employee who uses intermittent FMLA leave and doesn’t comply with the employer’s absence reporting procedures and receives attendance points or discipline as a result will have some explaining to do in order to avoid the lawful application of points or discipline.

So how can employees protect their legal rights in case they’re fired for not properly reporting intermittent FMLA absences? The easiest thing is for employees to ensure that they’re intimately familiar with the employer’s absence reporting policy and completely adhere to it, no exceptions. And employees should make sure that they keep a record of the date, time, and substance of their absence reports. If it’s an email, save it. If it’s a fax, save the actual fax along with the confirmation of the fax’s transmission date and time and successful receipt on the employer’s end. If it’s a phone call, use a cell phone so that there’s a record of the date and time of the call and make an audio recording of the call, whether you’re talking to a live person or leaving a voice message somewhere.

Your lawyer will need those types of things as evidence if you have to prove that you complied with your employer’s absence reporting procedures for intermittent FMLA absences yet were still fired. These case are extremely difficult to win without such evidence. Employers simply state that proper notice wasn’t received, that the intermittent FMLA absences weren’t protected, and that the discharge for attendance violations was legal. It’s up to the employee to prove to the contrary, which can be an uphill task absent the type of evidence described above.