B2B – 3:  Employee Notice

Blog after blog, I’m hounding you about your notice obligations!  If you jump into the way-back machine, you’ll recall the riveting blogs “C is for Communication” ,“Remember Rights is followed by Responsibilities”, “Did you notice the notice?”, or one of my favorites “YAY, I’m eligible! Wait…what does that mean?” As entertaining as they are, each one of them puts more responsibility on the HR team or Supervisor!  NOT TODAY!! That’s right…today, we shift the responsibility spotlight onto the employee.


In the world of the FMLA, employees need to do more than just call their supervisor. Regardless of the need for leave, it would behoove you to have an absence policy IN WRITING!!  Documentation is your friend!! This confirms you’re managing absences consistently with policy and not discriminating because the absence is for purposes of the FMLA. Any employee should be expected to provide the timing and length of the absence need.  Knowing when they are leaving and how long they will be gone is the minimum information they should provide. This will also give you the first hints as to whether the need is foreseeable, unforeseeable, clearly defined, or a length unknown.


Employees will fall into two categories. Â The first is one who has never had a FMLA absence before or the second would be one who has either used FMLA in the past or has an open FMLA certification. Â


If the employee has never used FMLA, you can’t reasonably expect them to know the ropes and use the term FMLA.  You can expect them to answer some of your specific questions, so you can determine if it MAY qualify for FMLA.  If they simply request time off, you can and should ask them “Is this absence related to a medical condition for you or a family member?”  If their answer is “No, I’m taking my wife and kids to Aruba on vacation” then it’s case closed and you have no further obligations.  However, if they say “Well, yes, but I’m not comfortable sharing that personal information”, then it is time for you to become more aware.  They are entitled to not share the particulars with you, their supervisor. In an effort to ensure they know what is expected of them and just as important, that they are feeling you are supportive, without being intrusive, simply let them know that you’ll have FMLA paperwork provided to them, just in case their circumstance qualifies for FMLA benefits and protections.  Then let the process take its course.


For those employees who have used FMLA in the past or it is for a reason that the employer has already approved time for previously, they should be expected to be a bit savvier and provide up front that the need for leave is for a specific reason or directly reference the FMLA need. Â


The timing of their notice has some parameters that should be defined in your absence policy.  If their absence need for leave is foreseeable, you may legitimately request 30 days advanced notice.  {opinion alert}  Be careful about requesting an employee to delay or deny an absence if they fail to give you 30 days-notice.  If you have no reason to enforce this option and you do it inconsistently among absence requests, you could be setting yourself up for a retaliation claim.  If their need for leave is unforeseeable, then you can expect them to report the need as soon as practicable. I’ll say it for you…..WHAT IS ‘AS SOON AS PRACTICABLE’?  This is where a bit of common sense comes in. If you require all other absences to be reported within 48 hours, then FMLA needs should be given that same opportunity. If you require absences to be called in within two hours of when they are to report to work, AND it would be reasonable under the circumstances for them to call in that time frame, then be consistent.  If they call late and tell you they’ve been at the hospital all night because of a car accident and a member of their family is in the ICU, an ounce of compassion will save you a pound of headaches in the future. Document why you went outside standard procedure and move on. As I noted in Managing FMLA Abuse, don’t manage your process to the 1% who might be trying to take advantage of you, as that’s a bad investment of your time. Â


The last concept I’m going to mention about foreseeable leaves has to do with planned medical treatment.  It is absolutely true that an employee can and should schedule appointments so they are the least disruptive to their workplace.  It is also reasonable for an employer to have an open conversation with the employee about the schedule. Ultimately, it is up to the health care provider.  Much like the 30 days-notice issue discussed above, requesting an employee to change their treatment schedule can become a slippery slope to a retaliation claim if you don’t have a very clear and legitimate reason and if you are inconsistent in how you administer this practice. Â


In conclusion, I guess I didn’t shift 100% off your shoulders, but hopefully you pulled some nuggets of knowledge.  We basically covered three Q&A’s about employee reporting.


Q. What do they have to report?

A. Enough information so you can assess if it might qualify.


Q. When do they have to report the need?

A. Depends on whether the need is foreseeable or not.


Q. How do they have to report the need?

A. In line with your customary (preferably written) absence policy, provided it is reasonable based on the facts of the situation.


The moral of today’s story – Employees also have responsibilities when FMLA needs arise,  but you need to be well versed on what those are and how to keep everybody in the know!