sick day.jpgLater this week, I am conducting FMLA training for management employees at one of our clients.  The training will focus on how the employer can utilize its own current personnel policies to properly administer FMLA leave and combat FMLA abuse.  During this training, I am going to tell them about Ritenour v. State of Tennessee.  Why?  Because it’s a great example of how an employer properly applied its call-in policy to discipline and ultimately terminate an employee who chose to ignore her obligation to timely report her absences.

Going into extensive factual detail about the case isn’t terribly necessary.  In any event, Jon Hyman does a great job of summarizing the case at his employment blog.  Although the fact pattern is a bit detailed, it boils down to this:  the plaintiff, Amy Ritenour, required time off to care for her child.  In the midst of taking several days off to attend to her son, she was absent for four straight workdays without calling in to report her absence.  Really — no one heard from her and she had no excuse for failing to call in her absences. 

Under her employer’s call-in policy, her failure to call in her absences was a problem, as it should be.  As Mr. Hyman appropriately points out in his blog post, the FMLA regulations are quite clear as to an employee’s obligations to call in an absence:

An employer may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.  For example, an employer may require that written notice set forth the reasons for the requested leave, the anticipated duration of the leave, and the anticipated start of the leave. . . .

Where an employee does not comply with the employer’s usual notice and procedural requirements, and no unusual circumstances justify the failure to comply, FMLA-protected leave may be delayed or denied.  29 C.F.R. 302(d)

So, what did the employer’s call-in policy state here?  It clearly stated the following:

If you must be late for work or absent because of illness or for an unforeseen circumstance, personally notify your appropriate manager or immediate supervisor as soon as possible by telephone. . . .

If you are not at work during your regular hours, you must be on authorized leave. This means that your supervisor knows of and has approved your absence.  In accordance with the law and rules, job abandonment occurs when an employee is absent from work without approval for three consecutive workdays or two consecutive workdays following the expiration of any authorized leave.

In short, Ritenour was obligated to follow her employer’s policy above unless she could establish that an “unusual circumstance” prohibited her from calling in her absences.  As the court pointed out, Ritenour was well aware of the obligation to call in her absences, and when she failed to do so, she was in violation of her employer’s reasonable call-in policy.  Her defense was doomed when she failed to articulate an unusual circumstance that otherwise would absolve her of following the employer’s call-in policy.  This is particularly true because the employer’s policy required proper notice for an absence of any kind, not just those under FMLA.  Therefore, when the employer disciplined Ritenour for violating the policy, it did not do so simply because of her rights under the Family and Medical Leave Act.  Rather, it applied its policy fairly to an employee who was absent from work, just as it would have done with another employee.

Insights for Employers

  1. Employers often are reluctant to apply their call-in policy to those employees on FMLA leave.  However, as the Ritenour court points out, an employer’s usual and customary call-in policies can and should be enforced, so long as they are applied consistently for all forms of absences.  Consistent application is key.  Employers should use this case as a guide when implementing reasonable call-in policies in their own workplace.
  2. As the regulations specifically point out, a employer may require as part of its policies that an employee provide written notice of the need for leave, and that the employee also call in an absence to a particular person.  As I have recommended in the past, I strongly encourage the use of leave of absence forms to ensure full employee compliance and to require the employee to call into a specific person. 
  3. 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.