FINEOS : How Employee Benefits Carriers Can Simplify Employers’ Attendance Policies

As an employer,whether producing widgets, serving food to the public, or running a governmententity, the organization relieson employees to come to work (whether physically or virtually) as scheduled. In the absence management industry, a niche market that solely exists becauseemployees might and domiss work, managingattendance gets complex. A recent court case highlights just one small area of the absence managementcomplexity: anemployer's absence reporting policy.

The Employer AttendancePolicy

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 mayhave 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 3rdCircuit 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 theemployer 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 Soutnercase,the Third Circuit Court of Appeals discussedthe difference between merely requesting FMLAleave and requesting and reportingFMLA leave. The employer's policy required an employee to request and be approved for FMLA leave and,once approved, to report anyFMLA absences as the employee takes them. Specifically,the policy required employees to call a designated call-off linewhen taking an unscheduled absence and designate whether the absence was sick time, FMLA leave, PTO, or some other leave. 

Soutnerhad requested and been approved forintermittentFMLA leave over a twelve-month period. She was frequentlyabsent during the approved twelve-month period,but she did not report the absences in accordance with the employer's policy. Whencalling off for an unscheduled absence, she would not specifythat the absence wasdue to theFMLA designated reason. Thus, as the court put it, she did not reportthe absence as FMLA leave. 

After several unscheduled absences, Soutner's supervisorreminded 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, Soutnerwas terminated from her employment after a ninth unscheduled absence.

Soutnersued and lost at the lower court level and appealed to the 3rd Circuit, which agreed with thelower 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 Soutnerfor her continued failure to report her absences in accordance with its policies.'

The employer's clearly written policy specifyingthe difference between requestingFMLA leave and then reportingFMLA absencesfellsquarelywithin the FMLA's requirementthat 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 CarriersRequire Fundamental AttendancePolicy Management Solutions

As the absence management market continues to grow, moreinsurance 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. FINEOSAbsenceoffers configurable automation rules that employee benefits carriers can tailor to employers' particular needs, such as enforcing employer specific FMLA attendance reporting policies.