Disciplining an employee who’s on FMLA leave is like walking on holy ground. You’re always a little scared. But don’t fear: Employers can normally expect employees to live by company policy when they ask for leave. An employee who doesn’t has some explaining to do.
The 5th Circuit recently backed up an employer who had a good policy. Check out General Motors v. Acker. GM approved the employee’s intermittent FMLA leave. Yet a couple times, he no-showed to work without giving the detailed 30-minute advance notice that an attendance policy required. Nor did the employee explain why he couldn’t give the advance notice. GM wrote him up, then put him on an unpaid disciplinary suspension.
That’s not FMLA interference, declared the 5th Circuit. An employer has a right to hold employees to its “usual and customary” policies for requesting leave – and discipline an employee who doesn’t. But under “unusual circumstances” like an unexpected medical problem beyond the employee’s control, the employee will get a pass anyhow. The FMLA says that employee gets grace. The GM employee didn’t explain anything, so the 5th Circuit dumped his case.
The case could have easily gone the other way. Had the employee explained why he truly couldn’t follow policy, he might have had his day in court.
Careful now: Always ask an employee why he didn’t follow policy before imposing any discipline. Document what the employee says – preferably in a way that’s endorsed by the employee (for example, a signature on a written counseling form or an e-mail from the employee).
One last thing. Having a policy on the books that you don’t live by can nail you. If your policy requires 30 minutes’ advance notice, but you look past employees’ failure to give the notice without a good explanation, you’re opening yourself up. You’ll discipline someone, and he’ll throw your past inaction back in your face.
Pick your policies carefully. Is management is willing to stand on them?