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BusinessColumnistsCarrie Mason-Draffen

Checking up on employees on FMLA leave probably illegal

Employers can check up on employees taking sick

Employers can check up on employees taking sick days, but can't extend the same monitoring to those on approved FMLA leave. Photo Credit: Getty Images/iStockphoto / olm26250

DEAR CARRIE: The owner of the company where I work has an unusual attendance policy. When employees are out sick, he instructs an office assistant to call them every day they are out.

The people making the calls read from a script that says, “I’m calling to confirm your status as being out sick.” When employees who miss the call don’t return it within 15 minutes, they are subject to disciplinary action, including forced time off and a loss of pay. Although I consider it a form of harassment, I understand that employers are pretty much free to set any attendance policy they like.

But I believe my company has now crossed the line by extending the intrusive practice to people out on the Family and Medical Leave Act. As you know, that leave has to be pre-approved. Given that, it seems to me that our employer’s policy of checking up on people out on FMLA is a violation of the regulations.

Some of the incidents so far have been appalling. The company called one employee while he was accompanying his wife to the hospital for surgery. My colleague had called our employer earlier in the day to say he was using pre-approved FMLA time and could not be reached.

In another instance, the company called to speak with an employee who was in the middle of oral surgery. Again, he had called ahead of time to inform the company that he would be using pre-approved FMLA time and would be unreachable. Are these additional restrictions a violation of the FMLA? If so, what agency or person can we contact? — Call of the Riled

DEAR CALL: It would appear that the long arm of your boss’s sick-day policy has reached too far regarding FMLA leaves. Here is what the U.S. Department of Labor’s website says:

“Whether FMLA leave is to be taken continuously, intermittently, or on a reduced-leave schedule, notice only needs to be given one time, but the employee must advise the employer as soon as practicable if dates of scheduled leave change, are extended, or were initially unknown.”

As you observed, employers are free to set the ground rules for their own sick-leave policies, but they can’t for an FMLA leave.

The U.S. Labor Department enforces the FMLA, which covers companies with at least 50 employees. The law allows eligible employees up to 12 weeks of unpaid leave a year to care for a newborn or to tend to serious personal or family medical conditions.

For more information, call the Labor Department at 516-338-1890 or 212-264-8185.

DEAR CARRIE: I work for a bank that is going to observe Veterans Day on Friday, Nov. 10, this year, and open the Saturday after, which is the actual holiday. Can the bank legally make that switch? — Legal Date Switch?

DEAR LEGAL: It’s legal. As mentioned above, when employers offer paid-time off, they can decide when employees use it. The switch seems a little odd to me. The bank is going to observe the holiday anyway, so why not on the day of, to keep employees happy?

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