FMLA and attendance policy

Irie

Our company has a point-based attendance policy. In the policy, employees are instructed to contact us at least 15 minutes prior to the start of their shift. Also, our policy states three days no call/no show is automatic job forfeiture and you will be removed from the payroll.

Last week an employee came to me and informed me that she is pregnant and gets morning sickness. I gave her the FMLA paperwork, due in 15 days. In our paperwork it states about contacting us if you are on intermittent leave and not coming to work, and if you don't the attendance policy will apply.

This employee was a no call/no show on Monday this week. Tuesday she called off sick. Wednesday and today she is a no call/no show. If she is a no call/no show tomorrow can we terminate since she is in violation of our attendance policy or does the FMLA prevail if she gets the certification to me within 15 days? This is ridiculous that people are allowed to do this and take advantage of the FMLA but it happens a lot. Everyone else at least calls to tell us they aren't coming in. Thanks.

Sharon McKnight SPHR

Irie,

I can understand your frustration; however, I would be cautious about terminating without finding out more.

As supervisors and HR folks, we often think there is no excuse for not calling in but sometimes there is a very good reason. In this person's situation, a miscarriage could have occurred. If that were me, calling my employer would be just about the last thing on my mind. I suggest that you try to contact the person at home, on her cell, etc. If she has a valid reason for not calling in, then some disciplinary measure would be warranted (perhaps a first and final write-up) but termination would be too severe, particularly when FMLA is part of the mix.

Even if she does not have a valid reason for not calling in, given the FMLA aspect of the situation, I'd consult with a qualified employment law attorney before terminating.

I hope this helps.

Sharon

NaeNae55

Sharon is probably the expert on this, but I say follow your normal procedures. Even employees on FMLA have to follow rules, including those for calling in. You might contact the employee and ask for an explanation, but do you do the same for everyone else? Protecting yourself from an FMLA lawsuit might open you up to a different kind. I have termed FMLA employees for not providing the information needed. In my term letter I let them know the termination would be rescinded if they provided the proper information by a set date. They didn't provide it, and we termed. The employee did not sue, but did challenge me on unemployement. I won.

I have no problem with contacting the employee and asking for an explanation before you term, but watch yourself. Is this a young pretty white girl? If an older black man mentioned FMLA to you and then didn't call in would you treat him the same?

FMLA is protection for employees from being terminated because they are sick, pregnant, or have a sick relative. It is not a free pass. As long as your procedure and policies are in place, and you have clearly communicated them and then followed them, you should be ok.

Sharon McKnight SPHR

Nae makes a very good point. If your practice has not been to contact employees in this type of situation, then you would be setting precedent now.

I was HR in a company with less than 500 ees. It was pretty easy to reach out to ees to keep communication open. I found the hard way that one phone call could save the time and effort of terming and then re-instating later.

Checking with your legal counsel first can save you headaches later.

Sharon