Hello...hello...hello...is there anybody in there? Just nod if you can hear me. Is there anyone home?
Have your employees have become so evasive in their requests for medical leave that you feel like signing Pink Floyd's "Comfortably Numb" to get them to talk? Have no fear -- you don't have to become that numb in order to effectively administer FMLA in these situations.
Take heart -- in case after case in 2013, federal courts everywhere have been slapping down FMLA lawsuits where the employee either: 1) failed to follow the employer's customary call-in procedures; or 2) neglected to provide the employer enough facts to indicate that an absence might be covered by FMLA. We have one good thing going: courts are far less forgiving when employees don't properly communicate with their employers about their need for leave. As a result, I encourage employers to be more aggressive when it comes to requiring notice under the FMLA.
Here are a few recent real-life examples that should bolster our confidence as employers:
As Eric Meyer noted recently in his employment blog, an employee who needed hernia surgery (an absence that otherwise would be covered by FMLA leave) assumed that he did not need to call in his absences while he was out for the surgery because he had previously met with his employer to discuss his upcoming surgery. However, the employer's policy required him to call in more frequently, and when it didn't, his failure to do so equated to a bunch of unexcused absences -- and his termination. White v. Dana Light Axle Manufacturing (pdf)
A federal appellate court ruled earlier this summer that an employee's text message requesting to be taken off 24-hour-call duty on one night was insufficient to put the employer on notice that she was requesting FMLA leave to care for her father. Lanier v. Univ. of Texas Southwestern Medical Cntr. (pdf) Same result in another "texting" case, where the employee simply texted that she was not well, and even after much prompting, texted, "As of today, I will be off until July 12th per my doctor for medical reasons." Here, the court found these messages were insufficient to trigger FMLA protections and the plaintiff's FMLA claims were dismissed. Banaszak v Ten Sixteen Recovery Network (pdf)
Just last week, a federal trial court knocked out FMLA claims by a fire battalion chief because he simply failed to inform the fire department that he would be taking several days of sick for a follow-up procedure on his heart. When pushed, the employee could not remember if he told his employer any details whatsoever as to the reasons why he was missing work. This level of evasiveness doesn't cut it when it comes to the FMLA. Freeman v. City of Little Rock (pdf)
Insights for Employers
What are the takeaways from these cases?
Maintain effective call-in procedures: Every employer should maintain a call-in policy that, at a minimum, specifies when the employee should report any absence (e.g., "one hour before your shift"), to whom they should report the absence, and what the content of the call off should be. If you don't have call-in procedures set up in an employee handbook or personnel policy that is distributed to employees, begin working now with your employment counsel to put these procedures in place. They will help you better administer FMLA leave, combat FMLA abuse and help you address staffing issues at the earliest time possible.
Require actual information from your employees! How many of you allow your employees to leave cryptic messages for you on Company voicemail when reporting an absence? Do you have a practice of returning these voicemail messages? How many of you actually probe with further questions the reason for the call off? A couple of thoughts to obtain the information you need to determine whether FMLA applies.
• First, include very clear language in your FMLA and other leave policies about how you expect your employees to communicate with you regarding the need for leave of any kind. (In your policy, you'll also want to include expectations for completing a leave of absence request form, which I also recommend.) My "model" policy provision looks something like this:
• When you contact Human Resources to report your need for leave, you must provide at least the following information:
o The specific reason for your absence, with sufficient information to allow the [Employer] to determine whether the FMLA may apply to your request;
o When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;
o A telephone number where you may be reached for further information.
• Second, ask questions of your employees to elicit enough facts about their absence so you can be in the best position to determine whether FMLA might be in play. As you have read in my previous blog posts, I recommend using a script of questions to assist you in your efforts.
If all else fails, perhaps you consider belting out a few bars from "Comfortably Numb" ["Relax. I need some information first. Just the basic facts. Can you show me where it hurts?"]. That sounds a little creepy, so don't do that.
But you get my point.