What to Do When No-Call/No-Show Employees Reappear

​Employees who fail to come to work and don't call with a reason are often fired. But what happens when a fired worker reappears and claims the absence was protected by federal laws?

An employer confronted with a returning worker who was fired under a no-call/no-show policy should ask the worker to document why he or she couldn't call, stated Joan Casciari, an attorney with Seyfarth Shaw in Chicago. "If the employee has a good excuse for not calling in, then he or she should be reinstated," she said.

Employers should evaluate these types of situations on a case-by-case basis, noted Melanie Pate, an attorney with Lewis Roca Rothgerber Christie in Phoenix.

Policies Are Generally Lawful

Many employers have policies informing employees that they will be fired after two or three days of absence if they have not called in to say they will be absent, Pate observed.

Some employers choose to discharge workers after just one day of no-call/no-show absence. But, she said, "those policies can be viewed as draconian by both employees and courts. Employees have emergencies that arise in their lives, and it is not always possible to contact their employer to report an unplanned absence."

State and federal leave laws generally don't excuse employees from adhering to the employer's attendance policy or protect them from being disciplined for no-call/no-show absences, she said.

Casciari cautioned, "Some paid-sick-leave laws are very specific as to call-off policies." Employers in Washington state have expressed concern that, under the state's paid-sick-leave law, they can't discipline employees for no-call/no-show absences. But an employer there can require advance notice of an absence if the employer takes into account those rare circumstances when an employee can't contact the employer prior to a shift, according to Jeffers, Danielson, Sonn & Aylward in Wenatchee, Wash.

As for the Family and Medical Leave Act (FMLA), its regulations provide that "when the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances."

Soña Ramirez, an attorney with Clark Hill in San Antonio, said that when an employee is a no-call/no-show, the employer should make sure the employee's supervisor calls the absent worker and alerts HR. She also recommended that, just to be safe, HR should:

• Check the employee's file to see if he or she had FMLA or Americans with Disabilities Act (ADA) leave in the past year. If there has been FMLA or ADA leave as recently as in the past year, an employee fired for violating a no-call/no-show policy may have a stronger case for proving FMLA or ADA retaliation.
  
• Ask the supervisor if the employee has a disability that needs an accommodation.
  
• After calling the employee, follow up with a text and an e-mail.
  

Give examples in the policy of what noncompliance looks like, recommended Myra Creighton, an attorney with Fisher Phillips in Atlanta. If texting a supervisor about an absence isn't acceptable, say that. Creighton said she isn't a fan of texts because managers may delete them, so there's no trail of evidence that the employee notified the supervisor.

However, Laurence Donoghue, an attorney with Morgan, Brown & Joy in Boston, had no problem with texts, stating, "Given the variety of communication tools we have now, I think it is more difficult for an employee to justify a failure to call in."

If the employee offers an FMLA- or ADA-related excuse for the absence, Ramirez said the employer should start the process for either type of leave, depending on which applies.

[SHRM members-only toolkit: Managing Family and Medical Leave]

When Reinstatement Might Be Considered

Often an employee who doesn't call or show up for three days in a row is considered to have voluntarily resigned or is fired, Donoghue noted.

"Even if the absence was for an FMLA or ADA reason, I think the employee really has to have a good reason for not calling," Donoghue said. "If he or she does [call], I have found that the employer will be forgiving."

Creighton said that three days is a long time to be absent without notice, and she is surprised when employees don't notify their employers that they will be out for this period of time. But she said there are instances, such as if a child or spouse has died, when calling an employer would not be the first thing on an employee's mind.

Unusual circumstances preventing an employee from calling an employer about an absence are rare, she said, such as being in a coma. An employee could be in a hospital and not near a phone, but usually there's a family member who can call, she added.

Whether an employer rehires an employee fired under a no-call/no-show policy if that worker reappears may depend on the worker's track record. Has he or she been a consistently good employee or flouted company policies in the past? But Creighton cautioned that the policy should be enforced in a nondiscriminatory manner so that the employer doesn't violate Title VII of the Civil Rights Act of 1964, which prohibits discrimination based on race, sex, national origin and religion.

Casciari recalled one employee whose mental illness was so severe he could not respond to his employer's communications. After getting medical help, he was able to substantiate his inability to contact the employer and was reinstated.

Sometimes, employees who are in jail have relatives call in and claim an emergency without acknowledging the imprisonment, Casciari said. While that is not an FMLA situation, she has seen jailed employees who were fired under no-call/no-show policies later claim that they couldn't work due to an FMLA-qualifying condition and that the imprisonment was "just a side note."

"Those situations need to be carefully reviewed," she said.

A study by the Society for Human Resource Management shows that employers are willing to hire someone with a criminal record if that person is the best person for the job.