Attendance Policies Come Into Question After FMLA Ruling

March 31, 2011

Employees taking intermittent leave under the Family and Medical Leave Act can present unique challenges to organizations, according to several employment law experts.

Anne Larson, chair of the labor and employment group for Chicago law firm Much Shelist Denenberg Ament & Rubenstein, cites Jackson v. Jernberg Industries Inc., a case in 2010 in which a Northern Illinois district court judge ruled in favor of a terminated employee, asserting that a company policy requiring employees to produce a doctor’s note as verification for each absence occurring during intermittent medical leave violated FMLA.

Legal briefs from the case indicate Chicago-based Jernberg Industries did not characterize the former employee as “good or bad,” nor did they base his termination upon suspicion of FMLA abuse.

Furthermore, according to testimony and submitted evidence, Jernberg was consistent in stating that its point-based attendance policy was designed to prevent employee abuse of intermittent FMLA leave, and that the employee was disciplined and ultimately terminated for his failure and refusal to comply with that policy. Jernberg officials testified that before his FMLA leave, the employee had complied with the attendance policy.

“This decision has serious ramifications for employers who have attendance or paid sick time policies that require employees to justify intermittent family medical leave with repeated notes from their doctor,” Larson says. “We strongly advise employers to follow the FMLA-directed certification and recertification process to avoid this type of legal action.”

In the year since the Jackson v. Jernberg Industries ruling, FMLA claims increased more than 10 percent, according to an October 2010 report by FMLASource, an affiliate of ComPsych Corp. According to the report, one reason may be that employees are seeking job protection for time off in a weak economy.

Bruce Koeser, director of human resources for the city of Delray Beach, Florida, says that with 813 employees, software to track family medical leave is essential. City policies don’t require additional verification during the leave period, but Koeser says he asks employees for ample notice when they plan to take intermittent leave.

“If we see a pattern of absences during an intermittent family medical leave situation, such as a person who tends to have migraines on Fridays and Mondays, we would definitely investigate that and ask for recertification,” he says, adding that he is careful to follow FMLA provisions.

When problems arise, legal counsel should be called immediately, says Larson. “Part of what can make you successful in dealing with FMLA issues is to guide the strategy from day one to avoid pitfalls,” she says.

She advises employers to make sure the requisite Labor Department form is given to the employee as soon as any mention of FMLA is made. “That form provides a lot of information about the leave situation so you are prepared for the absence and so everyone is clear about what is supposed to happen.”

“Communicate clearly and often,” advises Julie Breneman, a senior consultant at CBIZ Human Capital Services in St. Louis. “Once the leave period is determined, send a trackable letter outlining all aspects of the leave and the date the employee should return, followed by periodic reminders,” she says.

Breneman believes that employers run into trouble when they don’t properly inform the employee about the timing of their FMLA leave and other details, or when they try to be flexible, as in the case of Jernberg Industries.

“Attendance policies should apply to everyone, and making exceptions for an employee can backfire,” she advises.

To minimize frivolous use of family medical leave, Breneman suggests asking the employee to use vacation and sick time as a show of good faith. She also strongly encourages employers to calculate family medical leave on a “rolling” year basis, to avoid employees taking a 12-week leave, say, in October of one year and potentially gaining another 12 weeks just three months later.

“Employees are going to take what they can get, but most follow the rules,” she says.

“Usually, problems occur with employees who had attendance issues prior to the family medical leave.”

“Jernberg Industries may have fared better by simply discharging the plaintiff under its no-call/no-show policy rather than trying to be nice and giving him an opportunity to explain a 10-day, undocumented absence after the fact,” says Much Shelist’s Larson. “No employee should be allowed to flout established call-in procedures that he or she has complied with before, and then claim he or she was on unscheduled intermittent leave.”

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