Human Resource Blog

FMLA calls offs disruptive to business

We are an inbound call center, the employees are required to answer the phones. We currently have employees on FMLA that call in on Mondays,Fridays and whatever day they choose this is very disruptive to our business. What are the rules when it comes to disrupting business levels? When they call off they are disrupting the business and our customers are affected. Please help, thanks.

Unlike reasonable accommodations under ADA, an employer must grant FMLA, even if it is disruptive to business. Under ADA, if an accommodation is an undue hardship, the employer is not required to grant it. There is no such exclusion for FMLA. If the employee is entitled to FMLA, it must be granted, period.  Employees are expected to let you know in advance when they will be absent whenever possible, for example, if they are taking time off for a doctors appointment. But it is the nature of intermittent FMLA that it is not always predictable.

This is a very frustrating situation, but as a supervisor, you cannot take any negative action whatsoever against an employee who uses FMLA. That means you cannot discipline them, and you cannot count FMLA absences in assessing their performance.

However, there are a few steps that you can take to try to control or minimize the problem. An employee on intermittent FMLA can and should be required to follow the same reporting procedures as any other employee. You may need to change the reporting procedures to give you time to call in another employee, when someone is absent.

Every employee on FMLA needs to have the serious health condition certified by a doctor, and you are entitled to have it re-certified every 6 months. Especially when there is a pattern of Friday and Monday absences, many employers have had good luck attaching a calendar of the employees absences to the re-certification form, and asking the doctor to sign off that this pattern of absence is consistent with the treatment plan. Simply including this calendar often encourages employees to be more responsible.

On the certification form, you should ask the doctor to be very specific about the number and duration of absences — one absence per month of up to three days, or five absences per month, or whatever.

Finally, a drastic tactic but one that many employers take: you can schedule one extra person, especially on Friday and Monday. Then, if no one calls in sick, you can let one person go home after working just an hour or two. This is lawful in all states, and in most states you need only pay the employee for the time actually worked. Just make sure that you do not send the FMLA employee home early more often than any other employee.