Wednesday, September 20, 2023

Facebook Messenger and other alternative communication channels for attendance call-outs

An employee uses Facebook Messenger to notify his supervisor of a medical absence, ignoring the company's policy that requires employees to use a specific call-in line to notify their supervisor of a tardy or absence at least 30 minutes before their shift begins.

Are these absences FMLA-protected excused absences, or unexcused absences subject to termination?

In 2019, Kasey Roberts took six weeks of leave to undergo and recover from an emergency appendectomy, after notifying his supervisor via Facebook Messenger. A few days after returning, Roberts was hospitalized for a post-surgical infection. He again sent his supervisor several Facebook messages notifying of his absences.

After Roberts missed three more weeks of work, his employer fired him for job abandonment, claiming that all of his absences were unexcused since the call-in line, and not Facebook Messenger, was its "usual and customary" system for medical leave notice.

The 4th Circuit Court of Appeals disagreed, holding that because management had previously used Facebook Messenger to communicate with Roberts during and about his medical absences, it was reasonable for him to assume that it permissible for him to use it to report FMLA-protected absences.

"'Usual and customary' procedures include any method that an employer has, by informal practice or course of dealing with the employee, regularly accepted, along with those in the employer's written attendance policy," the Court wrote.

What's the takeaway here? Policies aren't worth the paper on which they are written if you don't follow them. The FMLA's regulations require an employee to comply with an employer's "usual and customary notice and procedural requirements for requesting leave" for the leave to be FMLA-protected. "Usual and customary" may be limited to the letter of an employer's policy, but only if the employer follows its policy to the letter. If it deviates from the policy (or permits supervisors or managers to do so), then it has established a new and different benchmark of "usual and customary" to follow.

In this case, the employer allowed Facebook Messenger to become a "usual and customary" method of reporting absences even though its call-in policy said something different. If you don't want your employees to operate outside the four corners of your call-in policy, then train your supervisors and managers to accept only that which the policy requires when employees miss work.