Call-in policy can’t discriminate among those out under Family Medical Leave
Chalk one up for sanity in FMLA guidelines: A federal court just reaffirmed your right to demand that employees out on FMLA leave stay in touch.
In this case, out of Minnesota, the court rejected an employee’s claim that her employer broke the law by firing her while she was on FMLA leave. Yes, the employee was fired while on leave, the court said, but she wasn’t fired because of her leave. She was fired, the court ruled, because she violated the company’s attendance policy.
WORKER FAILED TO CALL
The policy required people missing work due to health problems to either provide a tentative return date, or call in daily. Because this employee’s return-to-work date was uncertain, she was supposed to call in. But for three successive days, she did not call. The employer told her she was deemed to have resigned, per its policy. The employee filed suit under FMLA law citing interference, but the court refused to let the case go to a jury, a victory for the company. Here’s the key principle on which the case turned: If an employer would have fired an employee anyway, whether or not he/she was on FMLA medical leave, the termination is legal.
HOW TO APPLY FMLA GUIDELINES IN INTERNAL FMLA POLICY
You don’t have to accept that when employees are on FMLA medical leave, they can just disappear. You can require that they contact you on a regular schedule – as long as you have a policy requiring all employees who are ill to do so, whether they’re on FMLA or not. Also, you must apply your policy in agreement with FMLA guidelines. In other words, you can’t insist that some FMLA leavetakers call in while you relax the policy for others.
Cite: Bacon v. Hennepin County Med. Center, No. 06-CV-2359, D. Minn., 12/11/07.
