Would this be covered under FMLA?

bswain · October 2003

Our General Plant Rules state that it is a major offense if "Failure to contact the sick line at least one-half hour prior to the start of your scheduled work time when unable to report to work except for extenuating circumstances beyond your control and each situation will be reviewed on an individual basis by management and union committee." It is past precedent that an employee can call in anytime before the one half hour before the shift, they are not reprimanded for that, only for calling in late.

We recently had an employee that put in for a vacation day, which was denied for production needs. The employee did not work on Friday or Saturday, Saturday was posted mandatory on Thursday. The employee did not call the sick line for Friday or Saturday, she was well aware that Saturday was mandatory. Failing to contact the sick line for two days will result in two major offense write-ups for not contacting the sick line, which will be his/her 6th and 7th violation, which is termination. On the following Monday the employee brought in a letter from Five County Alcohol & Drug Program that stated the employee attended their three day drive intervention program held from Oct. 02 - October 05. He/She commenced their stay on Thursday at 6:00pm and completed program and Sunday at 6:00pm. A confidential release of information was signed by above person, allowing this information to be given.

The employee brought the letter in to me and stated not to ask any questions. The employee said they tried to get vacation, but it was denied. I asked if he/she knew they would be attending this class on Thursday and he/she said yes. I asked why he/she didn't call the sick line if they knew he/she would be attending these classes before hand, his/her excuse was that they had to get his/her boys around and didn't have time to call in, and that this letter was the excuse covering him/her for that, which did't state anything about not being able to use the phone.

We wanted to know if this is something that should be covered by FMLA, for drug abuse or alcoholism and if the write-ups should be given for a termination.

marc · October 2003

Assuming the ee was eligible (1250 hours and one year of service), then it probably is FMLA protected time. You probably should still write her up, and she is supposed to give you reasonable notice of planned events, but I do not think you could terminate her for not calling in.

bswain · October 2003

even though in the past we have terminated employees for the same reason, for failing to contact the sick line?

LindaS · October 2003

Actually, Marc, I would disagree with your assessment about not terminating the employee. The courts have held that, while an employee's absence MAY be covered under FMLA, they are still required to follow whatever attendance/call-in policies the company has in place. I have, in fact, successfully terminated employees for failing to call-in when their absence has been covered under FMLA. Returning with a "slip" when the employee knew ahead of time that they would be out would not qualify as contacting the employer. These were conscious decisions made by the employee and they need to deal with the consequences.

BSwain - as long as you have terminated other individuals for failing to call-in, you should be okay to terminate this one.

marc · October 2003

This looked like the qualifying diagnosis of the event. The ee was not able to work due to being placed in the 3 day program due to the alcoholism. I agree that the ee should have called in ahead of time and that looking for the vacation approval ahead of time confirms the knowledge, however, I think you are opening a can of worms if you terminate in a situation that FMLA would otherwise protect. I am no expert with respect to union situations, but I would bet this one would become a problem.

SMace · October 2003

FMLA protects the absences. It does not give employees the right to violate company procedures.

mwild31 · October 2003

This link should help you with your answers - it's federal, so double check with your state to make sure they don't differ:

[url]http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.302.htm[/url]

Based on my reading of the federal guidelines, you would be correct in terminating this person because they did not follow your organization's absence procedures. I would use caution though and make sure the employee wasn't able to contact you sooner considering the ``As soon as practicable'' text in the Act.

njjel · October 2003

If you have a union shop and this was grieved (assuming you terminate the ee) I don't believe you would win this one if it goes to arbitration. I try not to make a decision that I know or have strong feelings that I won't win at arbitration and I feel strongly you would not win this one. Discipline the ee for not calling in and begin your trail of progressive discipline, but grant them the FMLA time if otherwise qualified.

mwild31 · October 2003

Good catch - I usually put in my union/private disclaimer, but forgot to in this case.

SMace · October 2003

It sounds to me that you have two different issues. One is FMLA and one is failing to follow company procedures. FMLA certification does not get ee's out of following plant rules. As you stated, review the non-calling issue with the management and union committee and determine if not calling in because she had take her kids around is a good excuse. I say it is not. And if the management and union committee say the excuse is not valid, terminate her. Give her FMLA certification paperwork in the mean time. I disagree with the advice to let it slide. I would not let any rule slide just because it may get shot down at arbitration. Your job is to enforce company policy consistently.

Don D · October 2003

All the discussion of termination notwithstanding, the fact that you have a union contract will answer your question. You can piss up a storm about termination, but an arbitrator will overturn it clear as day. Like it or not. Disclaimer or not. Unions have not only driven 40% of our jobs offshore; they have also built successful obstacles to most sensible terminations. They will yet be the death of American industry.

Would this be covered under FMLA?

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