As an employer, whether producing widgets, serving food to the public, or running a government entity, the organization relies on employees to come to work (whether physically or virtually) as scheduled. In the absence management industry, a niche market that solely exists because employees might and do miss work, managing attendance gets complex. A recent court case highlights just one small area of the absence management complexity: an employer’s absence reporting policy.
The Employer Attendance Policy
Employers have little say when it comes to employees’ entitlement to time off work under laws such as the federal Family and Medical Leave Act (FMLA) and state law equivalents or paid sick leave laws. So, when it comes to one of the few areas an employer may have a voice, namely their attendance reporting policy, many employers have thoughtfully crafted a policy that supports effectively and efficiently running their operations.
A case decided by the 3rd Circuit Court of Appeals, Soutner v Penn State Health, emphasizes such an employer policy. Further, the case supports an employer who requires an employee to report an absence from work to both the employer and to the employer’s absence administrator, following a trend of court cases, about which we’ve previously written.
Requesting and Reporting FMLA: Understanding the Critical Distinction
In the Soutner case, the Third Circuit Court of Appeals discussed the difference between merely requesting FMLA leave and requesting and reporting FMLA leave. The employer’s policy required an employee to request and be approved for FMLA leave and, once approved, to report any FMLA absences as the employee takes them. Specifically, the policy required employees to call a designated call-off line when taking an unscheduled absence and designate whether the absence was sick time, FMLA leave, PTO, or some other leave.
Soutner had requested and been approved for intermittent FMLA leave over a twelve-month period. She was frequently absent during the approved twelve-month period, but she did not report the absences in accordance with the employer’s policy. When calling off for an unscheduled absence, she would not specify that the absence was due to the FMLA designated reason. Thus, as the court put it, she did not report the absence as FMLA leave.
After several unscheduled absences, Soutner’s supervisor reminded her of the reporting procedures and provided her copies of the call-off policy. After another unscheduled and undesignated absence, the employee received a final written warning and was counseled again about the call-off policy. Per the employer’s policy, Soutner was terminated from her employment after a ninth unscheduled absence.
Soutner sued and lost at the lower court level and appealed to the 3rd Circuit, which agreed with the lower district court, holding that her failure to comply with the employer’s absence-reporting policy defeated her claims. The 3rd Circuit stated “The [employer] acted within its prerogative in firing Soutner for her continued failure to report her absences in accordance with its policies.”
The employer’s clearly written policy specifying the difference between requesting FMLA leave and then reporting FMLA absences fell squarely within the FMLA’s requirement that employees comply with their employer’s usual and customary absence reporting policies (29 CFR § 825.302(d)). This case demonstrates the critical role served by both employers’ absence policies and carrier leave administration in supporting employers when it comes to FMLA and workplace attendance.
Employee Benefits Carriers Require Fundamental Attendance Policy Management Solutions
As the absence management market continues to grow, more insurance carriers seek to add absence management to their employee benefit market offering. Carriers need simple ways to support employers through the tricky maze that is absence administration. FINEOS Absence offers configurable automation rules that employee benefits carriers can tailor to employers’ particular needs, such as enforcing employer specific FMLA attendance reporting policies.