Excerpted from a Shawe Rosenthal LLP Blog by Fiona W. Ong
The media has been abuzz with the story of Secretary Lloyd Austin’s recent medical issues – and particularly the fact the White House, as well as the Deputy Defense Secretary Kathleen Hicks were not notified until after Secretary Austin had been in the hospital for three days! Various members of Congress are calling for an investigation. 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 is 50+ employees in a 75-mile radius. But employees must notify employers of their need for FMLA leave. 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.”
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 accommodation, can 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.
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). Be thoughtful and considerate – there may be reasons why an employee could not have notified you in a timely manner. Remember, however, that any medical information that is shared with you must be kept confidential.
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