When One of Your Employees Fails to Report to Work…

By Fiona Ong - Shawe Rosenthal LLP

January 21, 2024

Say, like the Secretary of Defense. The media has been abuzz with the story of Secretary Lloyd Austin’s recent medical issues – and particularly the fact that the White House, as well as the Deputy Defense Secretary Kathleen Hicks (who takes over the Secretary’s responsibilities in his absence) were not notified until after the Secretary Austin had been in the hospital for three days! Various members of Congress are calling for an investigation, among other things. But that raises the question for employers – what is an employee’s responsibility to notify the employer when they will not be at work for medical reasons?

Well, certainly, private employers can require employees to report when they will not be at work. Many employers have leave and absence policies that require an employee to notify an employer well ahead of time for scheduled absences (say, for a planned surgery and recovery) and as soon as possible for unscheduled absences (like a medical emergency). Employers may discipline their employees for failure to comply with these notice requirements – and many policies provide for automatic termination if the employee fails to call in for multiple days (usually two or three) in a row.

Now, there are various federal and state laws that apply to medical absences – they provide for both rights and obligations for both the employer and employee. First is the federal Family and Medical Leave Act, which grants eligible employees up to 12 weeks of (unpaid) leave in a 12-month period for the employee’s own (or their family member’s ) serious health condition. This law covers employers with 50 or more employees, and employees are eligible if they have worked for the employer for 12 months (not necessarily consecutive), 1250 hours in the past year, and at a location where there are 50+ employees in a 75 mile radius. But employees must notify employers of their need for FMLA leave (although they don’t specifically have to reference the FMLA – just saying that they need leave for medical reasons may be enough notice). No notice = no protection under FMLA.

The FMLA guarantees benefits coverage during the leave and, for most employees, job reinstatement at the end of the leave. And the FMLA leave is protected from disciplinary action under attendance policies. As relevant to high-level employees like Secretary Austin, there is a “key employee” exception where such employees may be denied restoration to their job position if such restoration would cause “substantial and grievous economic injuries to the employer’s operations.” A key employee is a salaried FMLA-eligible employee who is among the highest paid 10 percent of all the employees employed by the employer within 75 miles of the employee’s worksite.

Another federal law that provides protection for medical absences is the Americans with Disabilities Act. This law protects employees with disabilities who, with or without reasonable accommodations, are able to perform the essential functions of their job. Cancer is most certainly a disability and leave may be a reasonable accommodation, as long as it does not impose an undue hardship on the employer. But again, in order to be protected by the ADA, employees are required to provide notice of their disability and need for accommodation to their employers and where the disability is not obvious, the employer may require the employee to provide documentation from their health care provider to explain the disability and possible accommodations. No notice and/or documentation = no protection under the ADA.

At the state level, there are a variety of laws that may apply. Some states have passed FMLA laws similar to the federal law, with some differences (they may apply to smaller employers, provide more or less leave, have different eligibility requirement, be used for additional reasons, etc.). There are also state disability accommodations laws similar to the ADA that require leave as a reasonable accommodation.

In addition, an increasing number of states are implementing paid family and medical leave insurance programs, which grant paid leave to employees for reasons similar to the FMLA – including for an employee’s own illness. These programs are typically funded by contributions from the employer and/or employee and administered by the state. Employees apply to the state for benefits, and the state determines whether to grant them based on documentation from the employee’s health care provider. These laws also require employees to provide notice to their employer of their need for medical leave and their application for benefits.

And there are many state and local jurisdictions that have passed sick leave laws that apply to an employee’s own illness. These sick leave laws vary widely in their scope and requirements, but without exception, they all protect the employee from disciplinary consequences for the proper use of leave – but they also require the employee to provide notice of their need for leave in advance for scheduled absences, and as soon as possible for unscheduled ones. Whether sick leave may be denied if notice is not provided is not always clear, which is why it is important for employers to understand how the state and local sick leave laws work in each state in which they have employees. But no notice at all = no protections at all.

So one of the reasons that employees may not want to tell their employers about their medical condition is due to privacy. But what they and the employers should know is that all of these various laws require employers to maintain the confidentiality of any employee medical information, and such information may only be shared with those management officials with a need to know (in addition to some other very limited circumstances related to health and safety). They also protect the employees from retaliation or adverse employment actions based on exercising their rights under these laws. But the laws will not protect the employee if they do not provide notice to the employer that they have a condition or situation that may be covered by one or more of these laws.

Bottom line, you can hold your employees accountable for notifying you of any absences. Even if you later find out that the absence would have been protected by some law, the failure to notify itself is misconduct for which you typically can discipline an employee (although, if a sick leave law applies, it’s best to check with your attorney). But be thoughtful and considerate – there may be reasons why an employee could not have notified you in a timely manner (like, they were in a coma. If that’s the case, please grant the leave and do not discipline). Remember, however, that any medical information that is shared with you must be kept confidential.

www.shawe.com