The FMLA allows an employer to require an employee to report periodically on their status and intention to return to work. The FMLA allows such reporting requirements so that employers are not left in the dark regarding when an employee will return to work.
In Bardwell v. Global Santa Fe Drilling Co., No. H-06-0171, 2007 U.S. Dist. LEXIS 62106 (S.D. Tex. Aug. 23, 2007), Bardwell worked on an off-shore oil rig. Six crews of employees worked staggered 21-day shifts on the rig, with 21 days off. A helicopter was used to transport employees to and from the rig.
Bardwell was scheduled to report to work on January 7. She called two days before to report she was ill and would not make it. She supported her leave request with medical documentation. She was subsequently cleared by her doctor to return to work on January 20. Bardwell informed her supervisor that she would be able to return to work on January 20 for the last week of her 21-day hitch. Bardwell return to the rig by helicopter was scheduled for January 21. Bardwell failed to report to work on January 21. She was subsequently terminated.
Bardwell testified that she called her employer from home on the 19th and 20th to report that she was ill and would be unable to report for work. The employer maintained that it did not receive any calls from Bardwell. Based on an examination of her telephone records, the court concluded that Bardwell had not called her employer on the 19th and 20th as claimed. The court found that Global Santa Fe had a reasonable and good faith belief that Bardwell had failed to advise them, in advance, that she would be unable to return to work on the rig as scheduled on January 21.
The court concluded that, even assuming Bardwell's absence was covered by the FMLA, employee's who fail to comply with legitimate reporting requirements set by their employers are not entitled to reinstatement. Nor does the FMLA protect employees from discharge for reasons other than requesting FMLA leave.
Comment: All federal sector version of the the FMLA allow employers to have policies requiring an employee to report periodically on their status and intent to return to work. Periodic status reports are not mandated by the FMLA. To manage FMLA leave, federal employers should consider adopting policies that require employees to periodically report on their status and intent to return to work from FMLA leave.
Note that the FMLA regulations do not specify a penalty for an employee's failure to provide his or her employer with periodic status reports. As in Bardwell, courts have taken a hardline against employee's who fail to notify their employer regarding their expected return date. To perfect their FMLA rights, including the right to return to work from FMLA leave, employee's should exercise great care to notify their employer regarding their return to work date, and any changes thereto. Employees should provide notice in a way that leaves evidence that notice was, in fact, provided and when.