Q&A: Occasional exceptions to call-in policy may be needed

Question: We have an employee who is using intermittent family leave, but on a number of occasions failed to call in 30 minutes prior to shift, which is required by our call-in policy. We have told the employee that if they fail to comply with the policy again, they will be terminated. Are there any issues with this approach?

Answer: It’s fine as a general statement, but be prepared to make an exception. Generally, you can hold people accountable for failure to call in properly, even when they are using leave under the federal Family and Medical Leave Act (FMLA) or other protected leave. So, your warning is fine because it puts the employee on notice of the serious consequences of another policy violation.

However, if/when another incident occurs, be mindful of the employee’s particular circumstances. In most cases, you should apply your call-in policy consistently, but it shouldn’t be a completely mechanical process—you may need to exercise judgment. If an employee has unusual circumstances that prevent them from following your call-in procedures, you may need to make an exception. For example, an employee may be unable to communicate due to a medical condition, may be unable to access a phone while in a mental health treatment facility, or may be confused by misleading or inconsistent instructions. The FMLA regulations specify this duty to take unusual circumstances into account for both foreseeable and unforeseeable leave (29 CFR 825.302(d) and 825.303(c)). If you have an employee who is approved for FMLA or who may have an FMLA qualifying situation, talk to your Vigilant Law Group employment attorney before terminating them, even if it’s for violation of the call-in policy.