A recent case from the Sixth Circuit confirms in Srouder v. White that an employer may condition FMLA leave on the employee properly following the employer’s standard call-off procedure absent unusual circumstances. The Court further held that if the employee fails to follow the employer’s usual call off procedure, the employer may delay or deny FMLA leave. The Sixth Circuit decision further confirms that this requirement can still be applied even when the employee has previously discussed the FMLA leave with his or her employer.
However, this decision presumes that the employee handbook provides a specific procedure for call-outs. It also presumes that the employer equally applies the call-outs/attendance policy evenly to both FMLA and non-FMLA leaves. On this basis, we recommend that employers set forth a specific procedure for call-outs in the employee handbook and enforce it consistently and regularly. In addition, we recommend that employers advise employees via the employee handbook and possibly also when they request and receive approval for FMLA leave that they are required to follow the standard call out procedure. Then if an employee who is on FMLA leave fails to call off as required by the policy, the employee’s time off can be denied FMLA status and protection.
The employer should confirm first, however, that there were not any unusual circumstances, which prevented the employee from calling out per the normal procedure such as an emergency hospitalization.
