Human Resources News & Insights

Did employee on FMLA have to follow call-in policy?

One way companies help curtail FMLA abuse: Hold employees on medical leave to the same absence policies as everyone else. But is that legal?

One company’s policy required employees taking sick leave to call in every day to report an absence. After missing three days without reporting, employees were fired.

The rule applied to employees on extended medical leaves, including FMLA. The company’s handbook stated that “FMLA does not change [the company’s] leave of absence procedures,” and when employees took FMLA, they were given paperwork reminding them that they still had to follow the call-in policy.

An employee was granted intermittent FMLA because of a severe allergy and took leave for several weeks. At first, she called her manager every day in accordance with the policy, but then stopped. After she failed to call for three days, the company fired her.

She sued, claiming the company couldn’t fire her while she was on FMLA and that asking her to call in infringed on her rights under the law.

But the judge didn’t buy it. Employees taking leave can be fired as long as companies can show they would’ve lost their jobs even if they weren’t on protected leave.

In this case, it wasn’t the fact that the woman took FMLA that got her fired — it was her violation of company policy. Since the policy applied to employees on all leaves of absence, the company showed it didn’t single out employees on FMLA.

Cite: Bacon v. Hennepin County Medical Center

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  • Judy Nelson

    My company doesn’t have such a requirement to call in every day when on an extended leave. As an employee I would feel put upon to have to do this every day. Say I’m out on sick leave and I will be returning to work in 3 weeks – well the company knows when I’m coming back so I have to call every day to say I’m out?? Seems redundant to me. I certainly believe in keeping the lines of communication open but this seems a little over the top. Suppose the person is seriously ill or recovering from major surgery and does not have the ability to make that call for several days??

    I’m interested in hearing views on this and on whether your companies have this type of policy.

  • Gina

    It seems like a ridiculous policy. What about the associates who are unable to call in daily due to the nature of their medical condition?

    The medical certifications for FMLA should be enough. I don’t know why any company would add to the administration issues at the company by having their LOA associates call in.

    We require ACTIVE associates to call in each day they are out. associates on an LOA are not ACTIVE.

  • LRD

    I was a bit surprised at this call “every day” ruling, too. FMLA could be someone out for maternity leave…they have their 12 weeks (or whatever part of that they wish to take) and you want them to call every day for three months? Wow! What a burden on everyone…the employee and whoever has to track that they DID call every day!

    On FMLA, the forms provide for time periods for checking in and can be adjusted for the specific leave time. “Every two week” or “3 days before returning” and the form also provides for the “estimated time of return”…so you would have SOME idea when that person should be notifying you.

    So, I agree with Judy that every day is pretty redundant.

  • Albert Roark

    Even if the calling each day was a bit extreme, the employee understood the requirement and followed the rule for a time before deciding to stop calling. The employee was at fault.
    I believe the employee should have had a meeting with HR and asked if she could have the requirement amended in her case so she would not have to call in ever day, but as the information in the case does not address this, we can assume she did not. If the employee has started out not calling every day, a case could be made that she did not understand the limitation, but it seems she did in this case.

  • Our employees need to call in on a daily basis when they’re on intermittent leave, not where we’ve granted them a specific length of time off, and I think the former situation applies here as well. The supervisor/manager cannot properly manage his/her department if there’s no awareness of whether or not that employee is going to show up on any particular day. We certainly would not expect our employees on either FMLA or non-FMLA leave to call every day when the return date (or anticipated return date) is already known.
    In this case, however, their company policy had been established, and the employee had been following it. Had she communicated with her manager, and indicated that the policy was a burden based on medical reasons, there may have been some accommodation made. But she didn’t, and she violated policy and the termination was appropriate.

  • None of the above for President

    Our Company makes anybody taking intermittent FMLA leave call in everyday, Someone who may be off for 3 weeks, I usually go strictly by the paperwork. If it states that your off for 3 weeks, I log it on a excel spreadsheet when your return date should be, if you do not return by that day I will be calling you and it is up to you to provide me with the extra paperwork extending their leave. I tell them they have 3 days to provide this information (which in our handbook) it states after 3 days of an unexcused absence or No Call/ No Show you are released.