No contact from employee

rroberts

On the response to request for FMLA, we state that an employee will be required to provide reports of their status and intent to return to work every 10 days. I have an ee who has not contacted us for 3 weeks. I've sent a letter and called his home but still no response. What are my options here? Can I send a letter saying that his FMLA will be rescinded if I do not hear from him? He has 4 weeks left on leave.

stilldazed

My upfront standard warning to other HR folks (based on my experience and not what I perceive to be my expertise): Do what your policy allows, requires, and is consistent with others.

In my company, we do exactly what you are proposing--send a letter (certified or registered mail) advising that FMLA is subject to recission based on non response from the worker. My experience has been that you are legal in that you are counting the FMLA, you are advising the worker that you are and that it is contingent on a set of requirements, and you are prepared to rescind (and you are advising the worker to eliminate surprises down the line). Give the worker the minimum 15 days to respond. Get a signature card or go registered mail to give yourself some evidence that you did what you were supposed to do, and act accordingly when the magic date arrives. You'll probably find that the 4 weeks will elapse and you have already lost the worker and just don't know it yet, or there really is a serious development in the worker's situation that has prevented contact--which is what you are really trying to discern.

Best wishes.

LindaS

If you have medical paperwork stating that he needs to be off for XX period of time, what reason would you have to require him to contact you? You already know that he will be off work and there is nothing that can be gained by having him contact you.

You do not have any options, as long as his medical paperwork states that he needs another 4 weeks off. He has no obligation to contact you every 10 days despite your policy. Your policy, at least in the eyes of the court, places undue burden on the EE to make contact when you already know he is going to be off work.

Now, if it were at the end of the leave and he has not returned as scheduled, or the paperwork did not state that he needed as much leave as he is taking, that is a different story.

Review your policy and make the necessary changes. Leave the EE alone to heal and don't worry about it unless he does not return as scheduled.

stilldazed

I respect LindaS' position, but we have used our policy that requires call in periodically on a more frequent basis than FMLA, and because we are consistent with it by requiring the same for non FMLA situations, it has proven successful, legal, and has stood up against unemployment as well. The key is undue hardship relative to all of your workers, not just FMLA. Our finding has been that if your company generally expects call in on a periodic basis, FMLA situations should not be treated any differently in that respect.

Best wishes.

rroberts

The paperwork states ee would be out until a specific date. That date has come and gone and ee has not provided any further documentation or contacted us.

LindaS

I can see where Stilldazed is coming from but I feel that requiring an update every 10 days is overly burdensome and serves no real purpose. Now, if you have an EE who is going be out several months I can understand asking for maybe a monthly update but you cannot rescind FMLA approval based on not receiving that update, especially if the FMLA paperwork verifies that there is a need for longer leave than that.

Lets say, for example, an EE is out having hip replacement surgery. Now, the doctor specifies a three month healing period. You now have medical documentation stating that the EE will be off three months and you have the obligation to designate it as FMLA for that entire period. If the EE does not contact you every 10 days, you cannot rescind that designation.

On the other hand, let's say an EE is out for an unspecified length of time. In this situation you have every right to require periodic updates as you do not have anything stating the length of time they are going to be off work. In this situation 10 day updates MAY be appropriate, depending on the situation.

While Stilldazed policy may have held up for UI purposes, I would not want to go into court with this practice and try explaining to a judge why I terminated someone who had FMLA protection and I chose to rescind his designation simply because he did not call in every 10 days despite the fact that the medical paperwork stated that he would be off longer.

LindaS

Well that changes things. Your OP stated that he has four weeks of leave left so the assumption was that the medical documentation left him off work for another 4 weeks. If that is not the case, and you have nothing from a health care provider stating that he should continue being off work, go ahead and send him the letter stating that if he does not make contact by XX date, he will be terminated. Now the question becomes how long to give him - should it be another 15 calendar days or should it be a lesser length of time. To be safe, I would require him to make contact with you within 3 business days but give him the 15 to get the updated paperwork to you.

rroberts

Thank you for your answers. It is always good to hear what other HR people are doing in the same circumstances.

marc

We don't go as far as StillDazed does, but we do send a letter when there is about 10 days left until their expected return date.

That letter basically confirms the dates and that we are expecting the EE to show up at the normally scheduled start of their shift, and that we expect a return to work ok from their medical provider. We close with a statement that requires them to contact us if any of the facts have changed.

If we receive no response, we expect the return on the date specified. If a response indicates a change, we require an updated DOL form signed by the provider that lays out the changes.

If they do not return to work, we implement our two day no-call, no-show policy, which is another letter outlining that policy, which calls this a self-termination.

If they later show up with mitigating circumstances around the no-call, no-show problem, we evaluate those facts and circumstances and make a judgement call. So far, this has not been overturned or even requested to be overturned.

Some of this can be due to continued FML situations that might involve some level of incapacity. I expect a family member would contact us in that sort of event, but have never had to test that. However, if we found out later that was the case, we would re-instate the FML and go from there.