Under the Family and Medical Leave Act, employers may require an employee to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.
But unless you fancy defending FMLA interference claims, the call-in procedures shouldn’t require an advanced degree.
Nobody’s fault but mine?
For example, I read a Sixth Circuit decision last night involving an employee conditionally approved for intermittent FMLA leave. The employer’s third-party administrator (TPA) sent the employee a confirming letter.
So far, so good.
The letter included a section called “Actions Required,” which provided instructions. The first instruction was to “contact [the TPA] at the number listed below on the date of your first FMLA-related absence or tardy.” But that instruction did not give a phone number.
Under the third item in the list, the letter told the employee to “report all absences and tardiness in accordance with [the employer’s] mandatory Call-in Procedure” by calling the 1-800 number. But the list ended there. No other phone numbers were listed in the “Actions Required” section.
Seven paragraphs later, in the final paragraph, the letter said: “If you have questions, require additional information, or experience a change in your circumstances, please contact the [employer’s] Service Center at 1-888-[xxx].”
When the employee later missed work because of his serious health condition, he did not call the TPA and the employer before each tardy and absence. So, because the employee did not follow the specific instructions in the TPA letter, the employer concluded that it could deny FMLA leave.
Can’t you see? This is a land of confusion.
The employer could adopt a policy requiring employees to call both the TPC and the company call-in line to report an FMLA absence. But, noted the Sixth Circuit, you can’t fault an employee for not following an employer’s call-in policy if they can’t make heads or tails of it:
In this case, [the TPA’s] letter was so confusing that even [a representative in the employer’s] human resources department could not decipher what it was asking employees to do. [She] initially testified that all employees had to do was call [the employer] at the 1-800 number. Only after reading [the TPA’s] letter to [the employee] did she say that employees had to call both the [employer’s] call-in line and [the TPA]. But when asked which phone number belonged to [the TPA], [the HR representative] could not tell. Indeed, the letter said that both phone numbers belonged to [the employer]….These mangled instructions were so unclear that even [the employer’s HR representative] could not figure out what they meant.
The Sixth Circuit reasoned that the employee could not strictly follow the confusing instructions. He called one number and didn’t think anything of not calling a second one. And, under the circumstances, that was good enough.
Plus, the employee took other steps to ensure that he correctly reported his FMLA days, like telling his supervisors and following up with HR to ensure that the company correctly coded his absences.
Based on these facts, a jury could find that employee gave proper notice of his intent to take FMLA leave and could have an FMLA interference claim.
Employer takeaways.
- Have a written FMLA call-in procedure.
- Communicate the FMLA call-in procedure to employees (and whoever is responsible for receiving the call-in)
- Keep the FMLA call-in procedure simple.
And, for the love of Pete, ensure HR can explain it during a deposition.