No contact from employee
rroberts
34 Posts
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 Can I send a letter saying that his FMLA will be rescinded if I do not hear from him?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.
Comments
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.
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.
Best wishes.
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.
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.