FMLA Issue - TX

TLCTX

I have an employee who is on intermittent FMLA, and who missed work today without notifying the company.

The company policy states that in the event the employee is a no call no show two days in a row, the ee is terminated. The employee notified the foreman that the reason he is out is due to the medical condition, but we have no notice from his doctor's office at this time.

If the employee misses tomorrow, should we terminate, as he has not notified us of his whereabouts or the amount of time he currently needs off? Or, should we hang around and wait?

I was told not to contact the employee, because the contact will start the clock over again on the two day no call no show rule.

Any suggestions would be appreciated.

Thanks!

TXHRGuy

You have some issues here to deal with.

First, the most commonly court recognized standard for job abandonment is 3 days of NCNS, not 2.  A reason why you might want to adopt that standard, aside from the fact that it's known to be accepted in a few courts, is that FMLA typically is construed to allow for up to two days before anybody has to talk to the employer.  This is under attack right now, but it is what it is.  29 CFR 825.303: notice an employer can require of an employee when the need for leave is not foreseeable applies:

http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.303.htm

The regulation talks about "as soon as is practicable" which is not defined and says that it is "expected" the the notification will come "no later than one or two days" "except in extraordinary conditions".  "Practicable" is not defined.  "Extraordinary conditions" are not defined.  So much for what is "expected".

I would not terminate if the person doesn't show up tomorrow without a whole lot more information.

Has this person's need for leave been certified?  If so, unless something's changed that I am unaware of, you cannot ask for doctor's notes in the usual sense.  You can ask for a note from a health care provider certifying that the cause of absence was the certified condition but only if your written policy states that you can do this.  If the need for leave has not been certified: get this person to certify their need for leave.  If there is a cert in place but you doubt it's validity in the case of this leave, let us know.  That's a different bunny trail.

Now, on the other hand, this person may not actually be out on intermittent leave.  They may just be out.  If it were me, I'd want to know the cause of leave before making any decisions abouttermination or non-termination.  Also, keep in mind that if this employee or any person acting on the employee's behalf notified any member of your management team, then the employee has fulfilled his or her obligations.  It can be very difficult sometimes to determine if the Company has been notified.  The matter is complicated by the fact that the employee can make the claim that they or their designee contacted the Company and it can be hard to show that they did not contact the Company.

Getting very tight with FMLA rules is risky business because the rules themselves are not written tightly.

IT HR

I agree with TXHRGuy that I would not be so quick to terminate.  I also agree that your policy needs to be changed to 3 days NCNS.  That is what is widely used in the courts around my area for NCNS.  3 days NCNS will disqualify you from unemployment in my state.  Also I think you need to look at what type of employee this person has been.  Is this something the employee has done before or is this really unusual behavior? I have had people not notify us and the mgr wanted to terminate after the 3 day NCNS.  Knowing that the ee had never been in trouble before, never even been late, I knew something wasn't right.  I reached out to the family (emergency contact person), only to learn the person had been in a very serious car accident and was in ICU at one of the large hospitals in the area!!

But back to the FMLA situation.  One thing I am confused about is your first sentence says this person didn't notify the company but then in the next paragraph you said the ee notified the foreman.  Which is the true statement?  If the ee notified the foreman then I would say the company has been notified and I would not terminate.   

TLCTX

Sorry, I misspoke. Last week, the ee notified the foreman that due to his medical condition, he was going to miss two days. That was the last we heard from him - so when we expected him to RTW on Tuesday, and he did not, the superintendent wanted him gone.

I called the ee, and it turns out that he thought since he was on FMLA, he didn't have to notify us. I sent him the appropriate paperwork requesting notification.

Thanks.