Wednesday, May 6, 2009

Dealing with the AWOL employee: What is “reasonable” employee notice for FMLA leave?

Lots of businesses have zero-tolerance no-call/no-show policies. Under such a policy, if an employee is AWOL from work for a predetermined number of consecutive days, that employee is considered to have abandoned his or her job and is terminated. Under such a policy, an employee is typically considered AWOL if he or she fails to call-in and report the absence prior to the start of the scheduled shift.

What happens, though, if an employee’s absence is caused by an unforeseen medical condition (to be topical, for example, the swine flu)? If the employee wants these absences to be protected by the FMLA, how much notice does the employee have to provide an employer? Or, to examine this question from the other side, when can an employer discipline or discharge an AWOL employee?

The recent amendments to the FMLA’s regulations answer these questions and provide employers with some guidance. According to section 825.303 of the FMLA’s regulations:

When the approximate timing of the need for leave is not foreseeable, an employee must provide notice to the employer as soon as practicable under the facts and circumstances of the particular case. It generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave….

When the need for leave is not foreseeable, an employee must comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.

A recent opinion letter drafted by the Department of Labor’s Wage and Hour Division [PDF] explained how these rules apply to enforcing call-in procedures:

Where an employer’s usual and customary notice and procedural requirements for requesting leave are consistent with what is practicable given the particular circumstances of the employee’s need for leave, the employer’s notice requirements can be enforced…. Thus, in the example … of an employer policy requiring employees to call in one hour prior to their shift to report absences and an employee who is absent on Tuesday and Wednesday, but does not call in on either day and instead provides notice of his need for FMLA leave when he returns to work on Thursday, it is our opinion that unless unusual circumstances prevented the employee from providing notice consistent with the employer’s policy, the employer may deny FMLA leave for the absence.

What does all this mean for your business’s call-in procedures and no-call/no-show policy?

  1. Reasonable, non-discriminatory policies will be enforced.

  2. Unless an employee is completely incapacitated or otherwise unable to call-in or have someone else call-in for him or her, an employer does not have to excuse a failure to abide by the policy.

  3. Call-in procedures should allow for someone other than the employee to call-in and report an unscheduled absence.

  4. If an employee legitimately cannot call-in because of “unusual circumstances,” the employee must do so as soon as reasonably practical.

  5. If the employee fails to follow these rules, the employer can deny FMLA leave for the absences, and discipline or discharge accordingly pursuant to its own internal rules and policies.

Presented by Kohrman Jackson & Krantz, with offices in Cleveland and Columbus.

For more information, contact Jon Hyman, a partner in our Labor & Employment group, at (216) 736-7226 or