Kelly, an administrative assistant for Penn State Health, racked up quite a few absences over a short period of time. Some of these absences related to GI issues that ordinarily would be covered by the FMLA.
In Kelly’s case, however, she repeatedly failed to timely report these absences, which led to attendance points.
Penn State Health’s call-in procedures required employees like Kelly to make two calls whenever they wanted to request FMLA leave:
1) one call to a designated “call-off” line (within 24 hours after the absence); and
2) one call to the Company’s third-party administrator to report the need for FMLA leave (within 15 days after the absence).
This story is very simple: when Kelly failed to call one line or the other (or both), her absence was not protected by the FMLA and she incurred points. Despite repeated warnings to timely report her absences, Kelly failed to do so. When she reached nine points, her employment was terminated.
As the story goes, Kelly sued Penn State Health, claiming various FMLA violations.
No soup for you, said the trial court, which quickly dismissed her claims. Why? She did not follow the employer’s reasonable call-in procedures for reporting her need for leave, and she identified no reason why she could not follow them.
Case dismissed. Soutner v. Penn State Health (pdf) My friend, Megan Holstein, alerted me to this case here. (Thanks Megan!)
Insights for Employers
This employer win is a reminder to the rest of us:
- Maintain an absence notification policy that requires an employee to call into an actual person or to a call-in line to report their absence and need for leave. Even better, require two calls — one to report the absence generally to the manager, and another to an employer intake line or a third-party administrator handling calls on your behalf. If the employee does not make the second call, the leave is not covered by the FMLA, and therefore, it is unexcused.
- Revise your FMLA policies. 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 might 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:
► The specific reason for your absence, with sufficient information to allow us to determine whether the FMLA may apply to your request;
► When your leave will begin and when you expect to return to work, including specific dates and times of absences, if known;
► A telephone number where you may be reached for further information
- Set a deadline for the employee to report an absence. But my goodness, set more stringent deadlines than this employer did! For the life of me, I can’t figure out why so many employers give employees such a long time to report their absence. Here, Penn State gave the employee 24 hours to call into its call-in line, then another 15 days to call into its third-party administrator. 15 days!?! Sheesh! Imagine all the things I could do in 15 days? I could go on a two-week beach vacation and still have time to spare before I have to report my absence. I could paint my back deck the color fuchsia 14 different times and still have a day to spare before I have to call in my absence. Really. Why. This. Long? Unless your operations are better off otherwise, set a much tighter time period (e.g., one or two hours before/after the shift starts) for reporting the absence.
- One final thing about your call-in procedures. At the end call-in requirements, make clear that the employee is expected to explain why they could not follow the call-in procedures on occasions when they do not follow them. This protects against an employee claiming in the termination meeting that the absence from three months ago actually was FMLA leave and not unexcused absence for which you are terminating them.
One more thing. Maintaining effective call-in procedures is an excellent tool to combat FMLA misuse. If you don’t have these 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 best opportunity possible.
Two calls are better than one. Do it today.