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Employee Is Not Excused From Call In Procedures Just Because Absences Are Covered Under FMLA

By on September 20, 2011 in FMLA with 0 Comments

CenturyTel of Central Arkansas had a personnel policy which required employees to call in daily when absent.  This was contained in an employee handbook which all employees received.  Loretta Thompson worked for CenturyTel as a facility assigner in the Programming Department.  She acknowledged receiving the handbook which included the following policy:

Unless otherwise directed by the supervisor, employees must call the supervisor each day during a period of absence.

An employee who fails to provide proper and timely notification for three consecutive workdays or three workdays in a 12-month period will be deemed to have voluntarily terminated their employment. . .

In the summer of 2006 Thompson received FMLA leave from July 10 through August 7.  She did not call in daily as required and was given a verbal warning. 

On April 30, 2007 Thompson did not report to work.  The supervisor called her at home, and Thompson then reported to work three hours late, stating that she did not know she had been scheduled to work that day. 

On November 12, 2007 Thompson saw her doctor for medical problems.  She called in sick on November 16, 2007.  She did not call in or report to work for the next three scheduled shifts.  Her supervisor finally reached her on November 21, 2007, and Thompson said her grandmother had just passed away.  When she returned to work, she applied for FMLA leave for the days she had missed.  She also received a written warning for failure to call in from November 17-20. 

This pattern continued with Thompson missing days but not calling in for a total of seven times in a one-year period.  The last period was from January 30 – February 4, 2008.  Thompson did not call in on February 1st and 2nd.  She returned to work on February 5, 2008 with a note from her doctor stating that he treated her for the past four days.  Her employment was terminated on that date for violating the call-in policy.  Subsequently, Thompson provided a Health Care Provider’s Certification on February 27, 2008, stating that Thompson had a serious health condition under the FMLA and was unable to work from January 29, 2008 to February 4, 2008.

Thompson argued that her firing violated her rights under the FMLA.  The court disagreed.  “We have previously held that an employer may terminate an employee on FMLA leave if she fails to comply with the employer’s call-in requirement.”  The court added, “A call-in policy is permissible, as FMLA regulations specifically provide ‘[a]n employer may require an employee on FMLA leave to report periodically on the employee’s status and intent to return to work.’” (citing 29 C.F.R. 825.309(a).

The court also rejected Thompson’s argument that every time she requested FMLA her employer had to provide her written notice of the call-in policy.  The court said that the FMLA does not require an employer to provide a notice explaining whether the employer will require ‘periodic reports of the employee’s status and intent to return to work.” (citing 29 C.F.R. 825.309(b)(2). 

This case from the Eighth Circuit is an important one for employers to understand.  It means that employment policies on calling in and reporting continue to be in effect even if an employee is out on FMLA leave. The case can be found at Thompson v. CentruyTel of Central Arkansas, LLC. 2010 U.S. App. LEXIS 24796 (8th Cir. 2010).

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About the Author

About the Author:

John H. Geaney, a shareholder and co-chair of Capehart Scatchard's Workers' Compensation department, began an email newsletter entitled Currents in Workers’ Compensation, ADA and FMLA in 2001 in order to keep clients and readers informed on leading developments in these three areas of law. Since that time he has written over 500 newsletter updates.

Mr. Geaney is the author of Geaney’s New Jersey Workers’ Compensation Manual for Practitioners, Adjusters & Employers. The manual is distributed by the New Jersey Institute for Continuing Legal Education (NJICLE). He also authored an ADA and FMLA manual as distributed by NJICLE. If you are interested in purchasing the manual, please contact NJICLE at 732-214-8500 or visit their website at www.njicle.com.

Mr. Geaney represents employers in the defense of workers’ compensation, ADA and FMLA matters. He is a Fellow of the College of Workers’ Compensation Lawyers of the American Bar Association and is certified by the Supreme Court of New Jersey as a workers’ compensation law attorney. He is one of two firm representatives to the National Workers’ Compensation Defense Network. He has served on the Executive Committee of Capehart Scatchard for over ten (10) years.

A graduate of Holy Cross College summa cum laude, Mr. Geaney obtained his law degree from Boston College Law School. He has been named a “Super Lawyer” by his peers and Law and Politics. He serves as Vice President of the Friends of MEND, the fundraising arm of a local charitable organization devoted to promoting affordable housing.

Capehart Scatchard is a full service law firm with offices in Mt. Laurel and Trenton, New Jersey. The firm represents employers and businesses in a wide variety of areas, including workers’ compensation, civil litigation, labor, environmental, business, estates and governmental affairs.

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