A recent Third Circuit Court of Appeal decision provides great guidance on what a good call-in policy can look like. In this case the employer, Penn State Health, utilized a call-in policy that required employees to make twocalls when they wanted to request FMLA leave: First, an employee had to call to a designated “call-off” line, and second, the employee was required to call the Company’s third-party administrator to report the need for FMLA leave.

In this case the employee, Ms. Kelly, failed to call one of the lines and consequently earned disciplinary “points”. When she reached the maximum allowed points, her employment was terminated.

Ms. Kelly sued Penn State Health alleging that her employer had retaliated against her for requesting FMLA leave and interfered with her ability to take FMLA leave. The District Court held that Ms. Kelly’s failure to comply with the Hospital’s absence-reporting policy defeated all of her claims, in part because she offered no reasonable explanation for her failure to follow them. In doing so, the District Court specifically stated that: An employee must comply with the employer’s requirements for requesting leave, unless those requirements conflict with a substantive provision of the FMLA. In this instance, the Hospital’s dual call-in requirements did not conflict with any substantive provision of the FMLA.

Employer take-away:

  • Implement and enforce a clear and specific written call-in policy that requires employees to call in to a specific person or line to report their absence and the reason need for leave within a certain time period. You should be able to require two calls – one to report the absence generally to the manager and another to an employer intake line, human resources, or a third-party administrator handling FMLA requests.
  • Evaluate your FMLA policies to ensure that they Include language regarding how you expect your employees to communicate with you regarding the need for leave of any kind. I would suggest that you also specify what type of information the employee must provide when they call in:
  • the specific reason for their absence with sufficient information to allow you to determine if the FMLA applies to the leave;
  • when the leave will begin and when it is expected to end, and
  • a telephone number and email where the employee may be reached.

It is also a good idea to state that an employee will be required to provide a reasonable excuse if they fail to comply with the call-in procedures.

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