Ask the Expert, Leave Management, Policy, and Compliance

Ask the Expert: Is Need for Sleep Covered by the FMLA?

by Susan Hartmus Hiser, JD, The Murray Law Group, P.C.

Question: Our attendance policy requires employees to call in all absences prior to the start of their shift, including absences due to approved intermittent leave under the Family and Medical Leave Act (FMLA). Some employees have presented doctors’ notes exempting them from the call-in requirement because the medication they take for their health conditions may cause them to oversleep and not be able to call the office in a timely manner. Do we have to exempt these employees from our call-in policy?

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Answer:  In general, no. When the need for leave isn’t foreseeable because of a medical emergency or a lack of knowledge about when the leave will begin, employees are required to provide notice as soon as practicable under the circumstances.

According to the law, that ordinarily means “within the time prescribed by the employer’s usual and customary notice requirements applicable to such leave.” You can enforce a call-in rule that requires employees to report absences prior to the start of their shift (or even two hours before their shift starts) or require employees to call a designated phone number. If the employee is unable to provide the notice because he is incapacitated, his spouse or another family member may provide the notice.

Moreover, you don’t have to accept a doctor’s blanket statement that the employee is exempt from following your call-in procedures. Rather, you must examine the situation on a case-by-case basis and excuse an employee from calling in only when unusual circumstances truly prevented her from contacting you. Does sleeping through an alarm because of side effects due to medication for a serious health condition constitute unusual circumstances? The answer depends on how big a risk you want to take.

In at least one case, a court denied an employee’s FMLA claims because the employee should have known that his medication would cause him to be sleepy and therefore should have called his employer when he took the medication. The court also reasoned that the employee should have made arrangements for a family member to call in for him. I think the outcome of that case was very fact-specific, however.

The safest course of action would be to call the employee to HR or your leave management office each time an incident occurs and question him about the reasons he was unable to call in. Then you can make the decision on a case-by-case basis depending on the facts at hand. You could also ask the employee to have a back-up plan for the next time he has to take his medication before a shift. If he agrees to make a back-up plan and then doesn’t follow it, you might have an additional reason to deny his use of FMLA leave for the absence.

Question:  Can an employee use FMLA leave to sleep because she is too tired to come to work after caring for a family member all night?

Answer: The FMLA covers time off work to actually care for a family member, not to sleep after caring for a family member. Neither the FMLA nor its regulations address whether an employee may take time off work to catch up on sleep because she was caring for a family member when she would normally be sleeping. Some courts have weighed in on the issue, however. One court held that a jury could reasonably find that an employee was unprepared to go to work in the evening after she spent the entire day caring for her daughter.

In your situation, I would err on the side of granting the employee the time off as protected FMLA leave and letting her burn through her leave entitlement. If you deny her use of the leave and she files suit, you may end up looking like the bad guy because the employee will appear sympathetic to a jury.

Susan is a shareholder with The Murray Law Group, P.C., in Detroit. You can reach her at shiser@murraylawpc.com or 248-540-4987.