Super Bowl.jpegThis morning, the sound of the morning alarm was harsh reality for scores of employees throughout Wisconsin.  After celebrating a Packers Super Bowl victory late into the night (a bitter pill for this Bears fan to swallow!), they have no interest in dragging themselves out of bed and heading into work.  For employers, you need not be located in Wisconsin to suffer the effects of the Super Bowl.  Case in point — I was talking with an HR professional (located outside of WI.) last week who was not looking forward to the day after Super Bowl Sunday, when she spends much of her day processing leave of absence requests — nearly all of which come from employees who called off right before the Monday morning shift started.

Some of the employees have fairly legitimate reasons for their absences (“My son, Johnnie, ate Aunt Erma’s chili last night and he can’t keep anything down this morning); others phone in ambiguous reasons such as, “I am taking FMLA again today,” or “Remember that thing I was dealing with three weeks ago … well, it’s acting up again.”

For HR professionals, the employer response to these phone calls is one of the most difficult they face: Do I count this as an ordinary sick day? Do I ask for more information? Can I ask for more information? What precise “thing” is “acting up” again?  Does this information trigger FMLA leave?

What can an employer do to obtain more information from the employee in these situations?

  1. Determine first whether the employee is seeking leave that might be covered by the FMLA.  Your first order of business is to determine whether the employee has even notified you of the possible need for FMLA leave.  If it’s an absence that clearly does not trigger the FMLA (e.g., “I’m sick,” or “My daughter has the flu”), you simply can subject this absence to your usual attendance policies and take action as necessary. 

    Unfortunately, it’s not always that easy.  Employees typically are not required to cite specifically to the “FMLA” as a reason for their absence; rather, the FMLA puts the responsibility on employers to decide whether FMLA is in play.  As you process the request, consider whether the information from the employee indicates that he or she: a) will likely be absent for more than three consecutive days, during which time he/she cannot perform any work; b) is suffering from a chronic condition that manifests itself intermittently throughout the year; c) is caring for a family member with a possible serious health condition; d) is suffering from complications due to pregnancy, or morning sickness.  Of course, this list is not exhaustive but is a key starting point to determine what your obligations as employer are under the FMLA. 

  2. Prepare a list of probative questions you ask of all employees when they call in to report an absence.  The employer has the right to know why the employee cannot report to work. During the call with the employee (or when you call them back after they’ve left you a voicemail reporting their absence) you should inquire about:
    • The specific reason for the absence
    • What duties of the job they cannot perform
    • Whether they will see a doctor for the injury/illness
    • Whether they have suffered from this condition before and previously taken leave for it.  If so, when?
    • When they first learned they would need to be absent
    • The expected return date (or time, if less than a day)
  3. If this is a medical condition for which they have taken FMLA leave on a prior occasion, determine whether recertification is an option.  Does the absence seem to be part of a pattern of absences that tend to occur on Mondays and Fridays?  Is the absence inconsistent with the information previously provided on the medical certification form? Has medical certification expired?  If your answer is “yes” to any of these questions, seek recertification immediately.  Moreover, if you are concerned about Monday/Friday absences, the FMLA regulations (29 C.F.R. 825.308(e)) allow you to provide the pattern of absences to the employee’s health care provider and inquire whether this pattern is consistent with the employee’s need for leave.