November 16, 2022

Flawed Policy Defeats FMLA Defense

In a recent case, the 6th U.S. Circuit Court of Appeals (covering MI, OH, KY, TN) agreed with the employer that it had the right to require an employee to follow its call-in procedures, even when the absence or lateness was for an FMLA-qualifying reason.  But not when the instructions are so “mangled” that even the HR representative, “could not decipher what it was asking employees to do.”

At trial, the HR representative testified that all employees had to do was call a 1-800 number when they were going to be absent. But after reading a letter that was sent to the employee, the HR representative recalled that employees had to call two numbers. But she did not know which number belonged to which person to be contacted. Plus, one of the numbers to be called was “buried at the end of the letter, wholly apart from the list of explicit instructions about the call-in procedure.”

Tip: If it has been a while since you have reviewed your attendance policy and procedure, give it a once over.  Are the instructions clear?  Are they regularly being followed? If not, ask employees who are not following them, why not.  The answer might provide opportunities to enhance the clarity.