Intermittent leave under the Family and Medical Leave Act (“FMLA”) is often difficult to manage for employers. The problem arises when a physician certifies that an employee is suffering from a serious health condition and will need “intermittent” leave whenever the condition arises. In other words, the employee has a free pass to miss work whenever he or she contacts the Company and advises that a “serious health condition” is flaring up again. The employer may be required to cover the individual’s work shift on a moment’s notice which can cause conflicts and discord in the workplace. In a recent case from the Eighth Circuit, one employer successfully terminated an employee for failing to properly follow the Company’s call in procedures regarding her FMLA absences.
In Bacon v. Hennepin County Medical, Melondy Bacon worked as a janitor at a local hospital. During her employment, Bacon broke out in hives. Her doctor filled out an FMLA certification indicating that Bacon suffered from a serious health condition and would need to take intermittent FMLA leave. Her doctor advised that she should avoid the work environment because cleaning chemicals could be life threatening due to her condition. The doctor also stated that it is difficult to know when symptoms would occur. When they arose, Bacon would need to be off work for at least 24 hours.
The Hospital had a policy which required all workers on sick leave or medical leave to call in every day to report their absences. Employees who fail to call in for three consecutive days were considered to have abandoned their employment and were automatically terminated.
Bacon suffered an outbreak and informed the Hospital that she would need to take FMLA leave. She continued to call in every day, consistent with the Hospital’s policy, but eventually stopped calling in for three consecutive days. As a result, the Hospital terminated her employment. She filed suit claiming that the Hospital unlawfully interfered with her FMLA rights.
The Eighth Circuit rejected the claim and found that Bacon would have been terminated regardless of whether her absences were FMLA related. The Court noted that an employer may require an employee to report periodically on his or her status and intent to return to work. The FMLA is not violated by discharging a worker who does not comply with an employer’s notification policies.
In this case, the Court found that the employee was clearly aware of the policy and failed to call in for three consecutive days. The decision to terminate Bacon’s employment was based on the policy and was not motivated by the FMLA.
Employers may enforce reasonable notification polices under the FMLA. If an employee fails to call in prior to their work shift in violation of an employer’s notification policy, the employer may be entitled to impose discipline consistent with its policy. Here are some general guidelines to follow:
1. The employer’s medical leave policy (or FMLA policy) should clearly indicate that employees must comply with notification requirements and update the Company regarding their leave status and intent to return to work.
2. When FMLA paperwork is initially provided to employees, the written instructions should refer to the Company’s call-in procedures and expectations.
3. The policy should be consistently enforced.
It is important to establish that the employee was aware of the call-in policy and that the policy is consistently applied to all employees on sick leave or medical leave (regardless of whether it is FMLA related). Taking these steps will help reduce your liability exposure to a retaliation or interference claim. It should also help manage those employees who abuse their FMLA leave privileges.