Twas the night before Christmas and all through your office, not a creature was stirring, not even the bosses.
Except in the nursing home, hospital, fire station, police department, convenience store, newspaper, television station and many other places of work.
Even though it is Christmas Eve, Christmas morning or a holiday, there are a surprising number of industries that require either on-site attendance or on-call availability during holidays.
These are considered critical or essential workers, and failure of these individuals to work as needed can create a significant hardship for the business and/or the safety or health of someone else.
Because of the essential nature of this type of work — and the likelihood that some workers will seek to avoid working during this time — employers need to be prepared to handle the potential for a “call out” on Christmas Eve, Christmas Day or the New Year’s holidays.
Employers can set higher expectations for time off around these critical days and hold employees accountable for failure to come to work.
Employers also can require that employees bring medical paperwork if they call out “sick.”
For any employee who is currently approved for intermittent leave under the Family Medical Leave Act, employers cannot discipline employees who take leave pursuant to their qualified available leave.
However, employers can require that the employee comply with all designated call-out procedures, and can ask questions related to the leave to make sure the reason for the leave is consistent with the approved eligibility.
In this situation, employers should also make sure that the leave is consistent with the approvals.
For example, if an employee is on approved medical leave for migraines and the medical paperwork estimates that the employee will be absent up to four times a month, the employee who calls out on Christmas Eve with the fifth occurrence has exceeded the FMLA eligibility.
The employer should withhold discipline until it submits a questionnaire to the physician asking if this is expected of the employee’s medical condition and seeking updated medical paperwork consistent with the leave. Typically, an employee who knows that his or her physician will be contacted if the leave exceeds the medical paperwork will be less likely to engage in FMLA abuse.
While some employees may be legitimately ill and cannot work, there are always a handful of people who call out to enjoy the holiday. The employer has a legitimate interest in setting expectations and holding individuals accountable for failure to come to work as scheduled.