Family Medical Leave

We have an employee who is habitually calling in to report their fml absence or tardy way past thier schedule time? (Generally 2 to 3 hours) Our current attendance policy though states they have until the end of their shift to report an absence but if a habitual pattern develops additional disciplinary action will be taken.  Can we require additional information? The employee is stating that the medicine that has been prescribed makes he/she sleepy? What would you do?

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  • Please provide some more information.

    Please give the details of the notification clause(s) in your attendance policy.  From the way you have it expreesed, It's not clear to me if the disciplinary action is related to hapitual attendance issues or for habitual late notification.  It's also not clear to me if the person is calling in 2-3 hours past shift start or shift end. 

    What state is the employee working in?  If the employee receives direction from a place other than their work site, please say so.

    Is this a previously certified condition for which intermittent leave was approved by the healthcare provider?  If so, is the certification still in effect?

  • And if the certification is still in effect, what does it state in regards to the number or frequency of absences?
  • We have a clause that states habitual attendance issues will received addtional disciplinary action. The person is callin in past shift start. We are located in Oklahoma. The certification is still in effect and it covers intermittent leave.

  • OK, there are two issues here.  The first is attendance.  The second is notification of absence.  OK is in the 10th circuit and I'm not really familliar with the way they work and the courts do not all lean in one direction on the whole notification thing.  However, you earlier stated that your policy said someone had to call in during their shift and it appears you are now saying that this person generally does call in during their shift.  If that's the case, then they are meeting the requirements of your notification policy as I understand it.  If that's so, then you have no case against the employee in any circuit.

    In general, absence in and of itself must be 100% forgiven if it is FMLA designated.

    Because it appears that your notification policy is not being broken and the absence is FMLA designated, you do not have any "attendance issues" and, therefore, disciplinary action is not warranted (and almost certainly illegal).

  • If the pattern also falls on Mondays/Fridays, the FMLA also allows an employer to ask for recert, as such absences cast doubt on the original certification. See May 2004 DOL FMLA opinion letter)
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