Emergencies happen. As an employer, you must navigate the many mishaps and setbacks — big and small — that employees will find themselves facing outside of work. Deaths in the family, car troubles and sudden hospital visits are all in the mix. In order to keep your organization running smoothly, you encourage your employees to keep an open line of communication and give you notice when they can’t come in to work. Most employees follow this procedure even if the emergency means that they can’t call in until the next day, or that a family member calls in for them.
But then there is the outlier of the outliers, the employee who doesn’t call, doesn’t show up, and doesn’t respond to your attempts to reach them. Several days go by. You assume that they won’t show up again. Then, out of the blue, the employee shows up again, requesting to be reinstated.
What do you do?
Examine the Details
It’s important to consider these events on a case by case basis. If the employee comes back with a reasonable explanation for why they couldn’t contact you, reinstatement should be an option. The employee’s track record will be an important factor in this decision. If the employee was usually hardworking and circumspect before this incident, perhaps a second chance is in order. However, if the employee exhibited disregard for company policies before the incident, the termination might need to stand.
Be mindful, though, of demographics and possible biases. If your decisions commonly come out on the short end for a specific group of people, you could be in violation of Title VII of the Civil Rights of 1964 and facing a class-action lawsuit. Your HR staff could prove crucial in navigating these waters.
Wrenches in the Gears
On certain occasions, the returning employee will come back ready to fight for their job. They might assert that terminating them was unlawful, promising a lawsuit in retaliation. While in most of these situations the law will be on your side, you should be aware of certain cases that are more difficult.
One such situation is if the employee has a condition protected by the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA). While employees still need to follow employer policies of calling in when possible, employees with these protections might have more grounds for a legal battle than others.
Courts also are more likely to side with an employee if your organization’s policies are unusually strict. Many businesses allow for two or three days of no response before termination, so the courts will scrutinize your organization more rigorously if it has policies that demand termination after a single day of no-call, no-show, for example.
How to Protect Yourself
Perhaps the best way to protect yourself and your organization is to set clear and fair policies that let employees know what is expected of them. In your policies, you should identify which situations are grounds for calling in and which situations are not. You should state how an employee should go about notifying you or their supervisor about their absence — if emails and phone calls are acceptable but texts are not, say so. Also, make sure to include how much time in advance is typically expected for calling in. For situations in which an employee cannot notify you or their supervisor in advance, declare your expectation of contact from them as soon as possible.
Wise additions to any policy are examples of noncompliance. If you find that many employees don’t call in soon enough when they are ill, for instance, you could include an example involving a hypothetical employee calling in and saying they are ill when they are already half an hour late. Employees will go out of their way to avoid mimicking specific examples of what not to do.
Soña Ramirez from the Clark Hill law firm in San Antonio recommends following the steps below to ensure that the employer is as safe as possible in no-call/no-show situations:
- Try to Reach the Employee. Make sure that the absent employee’s supervisor takes the time to call the employee.
- Alert HR. If the absent employee cannot be reached by phone, notify HR of the situation.
- Check the Employee’s File. After notification, HR needs to look up the employee’s file to see if they have requested FMLA or ADA leave within the past year. An employee who recently has requested leave will have more legal recourse than others.
- Ask the Supervisor for Details. The supervisor might be aware of additional disabilities that require accommodation.
- Follow Up with a Text and Email. Texting and emailing will provide documentation for the court that proves you attempted to reach the employee.