I conducted FMLA training this week for a client making fairly significant changes to the manner it administers FMLA leave. They not only are educating managers about their role and responsibilities under the FMLA, but empowering them to play a key role in reducing FMLA abuse.
My client also is making one key change (among others) as part of their FMLA intake process: it’s requiring employees to make two calls whenever they want to request FMLA leave — one call to their direct supervisor prior to their shift, and an additional call to their leave management department to report the need for FMLA leave.
Genius.
It got me thinking: why don’t all – or at least far more – employers implement this type of dual reporting policy? After all, this approach is perfectly legal and makes complete sense if you have the resources to pull it off. If an employee calls off work, they already are required to call their supervisor so that the shift can be covered. However, if they also want the FMLA to apply to this absence, they are required to call a second number. This second call can be required to another employer intake line or a third-party administrator handling calls on the employer’s behalf.
If the employee does not make the second call, the leave is not covered by the FMLA, and therefore, it is unexcused. Clients who have followed this approach often find that a two call approach reduces FMLA abuse. It also is great protection against FMLA litigation, since a number of courts have upheld this approach in the past couple years alone:
- Barnes v. Spirit Aerosystems, Inc. (10th Cir. 2013). FMLA claim dismissed because the employee failed to follow the employer’s dual reporting call-in procedures. Although he called the employer’s attendance line, he failed to request FMLA leave from the Company’s Benefits Center. This resulted in an unexcused absence instead of an absence categorized as FMLA leave.
- Perry v. Am. Red Cross Blood Servs. (6th Cir. 2016). Upholding dismissal of FMLA claim where the plaintiff did not call into the employer and the third party administrator.
- Norton v. LTCH, (6th Cir. 2015). The company’s policies required that employees on intermittent leave call an FMLA Leave Contact Center before each qualifying absence in addition to a normal call-in procedure. Because the plaintiff failed to make two calls, it doomed his FMLA claim.
- Szostek v. Drexel University, (3rd Cir. 2015). The employer required that employees notify both the employer and its third-party FMLA administrator of absences for which employees sought FMLA protection. Plaintiff notified the employer, but not the TPA, of such FMLA-related absences; therefore, they were not protected by the FMLA.
Nuff said. Find yourself an employment attorney and implement this process change now.
That is, unless you are particularly fond of FMLA abuse.
Jeff Nowak is a Partner at the law firm of Franczek Radelet and serves as co-chair of the firm’s Labor and Employment Practice and was named by Law Bulletin Publishing as one of Illinois’ top “40 Attorneys Under 40” to watch in 2012. Jeff is widely recognized as one of the nation’s foremost FMLA and ADA experts, regularly counseling clients on compliance with FMLA and ADA regulations, conducting FMLA/ADA audits and training, and successfully litigating FMLA and ADA lawsuits. Jeff is the author of the firm’s highly regarded FMLA Insights blog, which has been selected for four consecutive years by the ABA Journal as one of the top 100 legal blogs (2011-2017) and was also voted the No. 2 Labor and Employment blog by LexisNexis.
The above article first appeared in FMLA Insights and is reprinted with Jeff’s permission.
