Most employers have policies regarding when and how an employee is required to report absences from work, whether planned or unanticipated. The federal Family and Medical Leave Act (FMLA) allows an employer to require an employee taking FMLA leave to comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances. But what if the employee has already put the employer on notice of the need for leave by other means? Can an employer still enforce its reporting policy and not run afoul of the FMLA?
Yes! As substantiated by a recent case, an employer’s policy is the final word on how an employee must report an FMLA absence. In Srouder v. Dana Light Axle Manufacturing, LLC (6th Cir. 2013), employees were responsible to personally call in absences to a specified phone number on a daily basis before the start of the scheduled shift. The policy emphasized “calls to other numbers will not be acceptable.” The policy also warned that if an employee failed to report to work for 2 days without calling, the employee was considered to have voluntarily quit. Finally, the policy specified that the employer could deny or delay an employee’s taking of leave if the policy’s requirements were not met. The employee did not call the absence phone number, even though he had already notified his supervisor and human resources about his need for leave. The court supported the employer’s FMLA reporting policy, relying upon the FMLA regulation that allows an employer to enforce its “usual and customary notice and procedural requirements for requesting leave”. 29 C.F.R. § 825.302(d).
It is important for employers to understand that this regulation is a revision of the 1995 FMLA regulations. Previously, an employer could not necessarily enforce its internal procedural requirement to deny an FMLA leave not requested in accordance with that procedure. However, the FMLA regulations were revised in 2009, allowing employers to enforce notice and procedural requirements for requesting FMLA time off from work.
This is especially good news for employers who use third party FMLA administrators like Reed Group. The employer may require an employee to report an absence, such as an intermittent day off due to a flare-up of an FMLA serious health condition, to call a specific absence phone number.This provides the employer with one central point of leave management and the absence can be accurately tracked pursuant to the employee’s FMLA entitlement.