Call Off Requirement - FMLA Protected?

morrisg

Our labor contract says that if an employee fails to call off or calls off 1 hour after the start of the shift, that is an AWOL. We have long held to this practice. An employee whose wife has cancer needed attending by him. He called off 1/1/2 hours after the start of his shift and thus was AWOL. We had previously approved FMLA leave for him to care for his wife, however, that does not remove his responsibility to call us if he cannot come to work. Does anyone see an FMLA problem where an employee fails to follow the call off policy, as has occurred in this situation? Understand, he would not receive any attendance consequence if he was out to take of his wife, but I do not think the intent of the FMLA was to circumvent the need to properly call off. By the way this is his 3rd AWOL and under our contract that’s discharge. The other 2 AWOL were not FMLA related.

Please understand this is a labor contract where practice is just the way of life, and while we have compassion with his wifes situation we cannot make exceptions, else we start down a road of mutiple employees asking for exceptions.

Al Vreeland

You are entitled to hold employees to your regular, uniformly applied call-off procedure even when the employee is on FMLA leave.

Al Vreeland
Editor, Alabama Employment Law Letter
Lehr Middlebrooks Price & Vreeland, P.C.

morrisg

Al

Thank you for your prompt response. However, if our employee failed to call off within the one hour timeframe because he was involved in taking care of an emergency or some other medical condition that required his attention and (as I'm sure he will say) diverted him from making a call, does the law protect him under the "as soon as practicable" section below? I'm basing my question on 825.302 that says:

Whether the leave is to be continuous or is to be taken intermittently or on a reduced schedule basis, notice need only be given one time, but the employee shall advise the employer as soon as practicable if dates of scheduled leave change or are extended, or were initially unknown.
(b) ``As soon as practicable'' means as soon as both possible and practical, taking into account all of the facts and circumstances in the individual case.


Thanks again for your advice and help. I suppose I’m playing lawyer without a license!

LindaS

I concur. The letter I send to the EE when they are approved for intermittent FMLA states very clearly that they are expected to follow our regular call-in policy and that failure to do so will result in discipline up to, and including, termination of employment. I have terminated EEs for this exact thing and have NEVER even received a grievance on it from the union.