AWOL's Excluded Under FMLA?

morrisg

The August 2007 Alabama Employment Law Letter had a short article related to FMLA. In the context of that article it stated that:

“Employers cite instances of employees not calling in sick as required (even if they were able) and then saying after the fact that the absence was covered under the FMLA, which the regulations allow them to do.”

Is this correct? We have an AWOL policy in our labor agreement that says an employee who calls in 1 hour or later after the start of his shift is AWOL. I fully understand the restrictions placed on no fault attendance polices. But does this mean I cannot discipline an employee for AWOL even though nothing prevented him form making a phone call?

If this is true, can someone cite what section of the statue or case history makes it true?

LindaS

The FMLA regulations do NOT allow an employee to show a total lack of disregard for the employer's policies. In fact there have been court decisions regarding this issue and the courts have been on the employER' side when the employee failed to make contact with the employer in accordance with their policy in absence of a legitimate reason.

Our policy states that employees failing to call in within one hour of the start of their shift are assessed extra points in our Attendance Policy. The letter I give to employees when I am approving them of FMLA leave clearly states that it is their responsibility to contact the company in accordance with our policy and that failure to do so, in absence of a legitimate reason, will result in the points in our policy. The only exception to this is if an employee is going to be off work for a specified time and then I tell the employee, in writing, when they are to contact the company if they are unable to return due to their medical condition.

I have terminated employees for failing to call in their absences when their absence would have been FMLA protected and have not even received a grievance from the union.

Al Vreeland

An employee can provide information after the fact which supports the designation of leave as FMLA. You nevertheless always have the right to require employees to comply with your call off procedures, whether or not the leave is FMLA. The fact that leave is FMLA does not insulate them from complying with the procedure.


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

morrisg

Al,

Thank you for your comments. I was a bit confused about the newsletter comment, thinking that the author was asserting that employees calling in after the fact and then having their failure to call in designated as FMLA would prohibit the employer from charging the employee with an AWOL. If I understand you correctly, the employee’s reason for AWOL may be designated as FMLA, but the FMLA does not negate the right of the employer to require a proper call off. This had always been my understanding. I misread the author’s intent.

I suppose the defense in speaking with the employee would be that…

“We recognize the illness or FMLA event as covered under FMLA, but your failure to call off is not protected under FMLA since our policy (labor contract in our situation) requires that you make a proper call off”