Preventing FMLA Abuse: Why Call-In Policies Are a Good Idea

By Styskal, Wiese & Melchione

As you know, the federal Family and Medical Leave Act, or FMLA, confers a number of rights upon eligible employees who take time off from work for medical or other protected reasons. One such entitlement under the FMLA is the right to take intermittent leave, or protected time off in separate blocks.

This right should not be construed to mean that employees can take time off at their whim, or leave your management in the dark about their anticipated date of return. Under the FMLA regulations, employees must provide at least 30 days’ notice when the need for leave is foreseeable, or if the need for leave is not foreseeable, then notice must be given at least as soon as is practicable. Employees should also, perhaps with the assistance of their healthcare provider, be able to provide the credit union with an expected date of return.

Your credit union should strive to enforce these notice requirements for its employees requesting leave under the FMLA.

Another useful strategy is to maintain and enforce a written Call-In Policy, which requires employees to report periodically on their status and intent to return to work. These types of policies generally require employees on an indefinite sick leave (or any sick leave) to “call in” to their manager, or to HR, before the start of every shift to report their absence for the day. If the call comes in before business hours, the policy could require the employee to a voice mail message. Some policies permit employees to arrange with management to “call in” on a weekly basis, depending on the situation. Such a policy may also state that a certain amount of time (e.g., 3 consecutive days) without notice will be considered to be a resignation of employment.

This type of policy, if consistently enforced, can help our clients control the potential abuse of FMLA leave in a number of ways. First, employers have to be able to determine whether a leave actually qualifies for FMLA protection, which requires communication with the employee. A Call-In Policy like the one described above helps provide opportunities for such communication. An employee who ignores the policy and does not respond to management’s reasonable inquiries about the need for leave may lose the right to FMLA protection.

Additionally, being under FMLA protection does not mean that employees can ignore their employers’ usual and customary policies for reporting absences and seeking leave. Generally speaking, employees who violate a consistently-applied written policy may be subject to discipline (of course, unusual circumstances should be treated appropriately).

Another related “best practices” measure, which we recommend when employees take time off which may be FMLA-qualifying but fail to call in, is to make concerted (and documented) efforts to contact the employee. Phone calls or emails from a supervisor can demonstrate the credit union’s attempt to gather necessary information where the employee has not been forthcoming. Ambiguous requests for leave will not be granted FMLA protection where it is the employee who fails to meet his or her obligations.

Of course, as stated above, all policies should be evenly enforced, and credit unions should take care in their interactions with employees not to chill or discourage the use of FMLA time. Generally, a useful rule of thumb is that credit unions should not treat employees on FMLA leave differently than employees out for non-protected medical leaves. If you have questions relating to any specific situation, our office is available to help.