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Emergencies happen. Car accidents, family deaths, or hospital visits can keep employees from calling in until the dust settles—and most of the time, they do their best to let you know, even if it’s a day late or through a family member.
But then there's the true outlier: the employee who disappears without a word—no call, no show, no response to emails or voicemails—only to reappear several days later asking to be reinstated.
How should employers handle these situations? The answer lies in fair policies, consistent documentation, and compliance with federal employment laws.
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No-call/no-show cases should be considered individually. Look at the full context before making a decision:
If the employee had a legitimate emergency and a credible reason for not contacting you, reinstatement may be appropriate—especially if the employee has a strong work history.
A pattern of policy violations may justify letting the termination stand. Documentation of previous issues can be your best defense.
Be mindful of how similar cases have been handled in the past. If you routinely reinstate some employees but not others, your organization could be exposed to claims under Title VII of the Civil Rights Act.
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 are also 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.
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Prevention starts long before an employee disappears. These proactive steps can help reduce legal exposure and improve clarity:
Specify how and when employees should notify you of an absence
Outline acceptable methods of communication (calls, emails, etc.)
Clarify expectations for emergencies and timing of follow-up
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.
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Attorney Soña Ramirez of Clark Hill recommends the following steps to help employers stay protected:
Have the direct supervisor call the employee directly.
If the employee can’t be reached, loop in your HR team right away.
Check for any FMLA or ADA leave requests within the past year.
Ask if the employee has disclosed any disability or medical conditions that could require accommodation.
Follow up with both a text and email to demonstrate good-faith effort to make contact. This documentation could be vital in court.
No-call/no-show situations are tricky—and without the right policies in place, they can quickly escalate into legal headaches. Axcet HR Solutions helps small and mid-sized businesses establish compliant, consistent attendance policies and guides employers through difficult decisions when employees unexpectedly disappear.
From FMLA and ADA considerations to documenting due diligence, our certified HR services experts are here to help you manage employee relations and risk with confidence.
Need help navigating an employee no-show? Talk to Axcet today »
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