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FMLA policy should be integrated with attendance notice policy

September 20, 2013

Article courtesy of SBAM Approved Partner ASE

By Michael J. Burns

ASE carefully follows legislative, regulatory and judicial developments that impact employers’ policies and practices. In a recent Sixth Circuit Court of Appeals decision, the Court upheld an employer’s absence notice policy in the face of a Family and Medical Leave (FMLA) complaint alleging interference with FMLA rights.

In the case of Everett Shrouder, Matt White v. Dana Light Axle Manufacturing L.L.C. (8/17/2013) the court granted the employer-defendant Summary Judgment against the plaintiff Matt White, holding that he failed to properly follow the employer’s absence notification requirements as detailed in its policies and procedures. As many HR professionals know, many a complication has arisen when a sick or injured employee is off work and does not exercise diligence in calling in and also lacks the proper medical certification. Further, White had made requests for light duty work as his doctor was preparing him for a recommended surgery.

In fall of 2009, White failed to follow Dana Light Axle’s procedures for calling in, which required daily phone calls by the employee. He further failed to call in for two consecutive days in breach of the company’s policy that states that failure to call in for two consecutive days is considered a voluntary quit.

Despite prompts by the company to follow procedures and also provide the required medical documentation, White failed to comply and the company terminated his employment accordingly.

White was a union member and availed himself of the union’s resources in responding to the employer’s actions.

The lower court ruled for the employer, holding that the employer’s stringent notice requirements did not interfere with the employee’s FMLA rights. The Appeals Court, pointing out that updated FMLA regulations defer to an employer’s usual and customary notice requirements, confirmed the lower court’s decision finding that the attendance notice policy requiring daily call-in by the employee did not interfere with the employee’s right to take FMLA leave (Sec 825.302(d).

Dana did several things right to establish its absence process’ fairness and compliance with FMLA. It repeatedly requested the employee to provide medical certifications. It held meetings with the employee and the employee’s union representative regarding the policy and compliance with it. It documented the employee’s compliance with the policy and all communications with the employee pertaining to the FMLA leave and its absence policy. And it followed its own policies surrounding the time-off and FMLA leave request requirements.

Employers should strive to put a little extra into clarifying what is expected of employees when calling in absent. Also, in Michigan, unemployment insurance law disqualifies employees from compensation eligibility after three days without a call-in (which in itself is a good reason to adopt a three-day no-call/no-show rule to terminate an employee from employment).

But above all, this case underlines the fact that employers need to review their FMLA policies and attendance call-in policies and procedures to ensure they coordinate properly with each other.

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