“Ask Sheila” – FMLA

Dear Sheila:

We have an employee who was diagnosed with severe and chronic depression. His psychiatrist has certified he has a serious health condition under the Family and Medical Leave Act (“FMLA”). Many mornings he is unable to come to work on time, or misses work altogether. This employee is on a work crew that cannot leave each morning until everyone is there. Although we can accommodate his absences, we need to know if he is coming in or just running late. The employee often fails to call in timely, claiming it is his depression that makes him unable to call in timely. Can we discipline and eventually terminate him for violating our call-in procedures? I was told that because the employee’s absences are protected, we can’t touch him.

Sincerely,
Need to Know

Dear Need to Know,

Although it is true that the FMLA entitles the employee to miss work for his serious health condition, even in small increments, the FMLA does not give him the right to fail to follow your call-in procedures. Employees on incremental and unscheduled FMLA leave, meaning the doctor has not certified an absence for a specific period of time, must follow the same call-in procedures as everyone else, and may be disciplined, including discharge, for failing to do so.

The key to avoiding liability is consistent application of the policy: if coworkers are allowed to arrive late or not come in at all without calling in consistently, then you will have trouble disciplining an employee in protected status for the same action. You would need to show that other employees had been written up or terminated for not calling in timely to defend an FMLA discrimination or retaliation action.

Be aware that if a doctor has certified scheduled, predictable absences, such as dialysis three mornings a week, the employer may not require a call-in for each scheduled absence. Similarly, if a doctor certifies that the employee must be out for a block of time, like four weeks to recover from surgery, the employer may not require the employee to call in daily or weekly, unless the absence will extend beyond the certification, or if the return date is not definite. For example, if the certification states that the employee will be out for at least two weeks, and perhaps longer, the employer could require a status call at the two-week mark.

A reminder on FMLA basics – employees are not eligible for FMLA benefits unless 1) they work in a location with at least 50 employees in a 75-mile radius, and 2) the employee has worked for the same employer for a total of at least 12 months (even if not consecutive) and has actually worked at least 1250 hours in the 12-month period preceding the leave.

“Ask  Sheila” is prepared by  Sheila Gladstone,  the  Chair of the Firm’s Employment Law Practice Group. If you would like additional information or have questions related to this article or other matters, please contact Sheila at 512.322.5863  or sgladstone@lglawfirm.com.