Intermittent FMLA Call-In Procedures: Employer Guide
What call-in rules you can require for intermittent FMLA leave, the unusual circumstances exception, when discipline holds up, and policy language to use.
Intermittent FMLA Call-In Procedures
What you can require, what you cannot enforce, and how to write a procedure that holds up
Someone on your team is approved for intermittent leave. Three weeks in, they miss a shift and you find out from a coworker rather than from them. You have a nagging sense that you are allowed to require better than that, and an equally strong sense that doing anything about it might land you in a lawsuit.
The good news is that this is one of the few areas of leave administration where the law is genuinely on the employer's side, and where it says so in plain language. You are permitted to require a call-in procedure, you are permitted to enforce it, and courts have repeatedly upheld terminations for failing to follow one. The conditions attached are narrow and knowable: the rule has to be your normal rule for everyone, the employee has to have actually known it, and it has to bend for genuine emergencies.
This guide covers what the regulation actually permits, the specific things you cannot require, how the unusual circumstances exception works, what courts have done with call-in failures, a decision sequence for the moment a call does not come, policy language you can adapt, and what to log. Keeping absence records tied to a leave entitlement is exactly the sort of tracking I built FirstHR to handle. This is general information rather than legal advice, and leave law varies by state.
The Short Answer
Yes, you can require employees on intermittent FMLA leave to follow your call-in procedures. Under 29 CFR 825.303(c), an employee must comply with the employer's usual and customary notice and procedural requirements absent unusual circumstances, and protected leave may be delayed or denied if they do not. The procedure must apply to all absences, not only leave-related ones.
That is the answer. What follows is the detail that decides whether your particular procedure survives contact with a dispute, because the failures in this area are almost never about whether a call-in rule is allowed. They are about consistency, notice, and what happens when someone genuinely could not call.
What a Call-In Procedure Is
A call-in procedure is the set of steps an employee must follow to report an absence, and in the intermittent leave context it is the mechanism that converts an unexplained no-show into a documented, coded, protected absence. It is administrative plumbing, and it matters far more than its dullness suggests.
Two distinctions are worth drawing before going further. The first is between requesting leave and reporting an absence under it. Approval of an intermittent leave request does not report anything; each individual absence still has to be reported. Employees very reasonably assume otherwise, which is why the policy has to say it explicitly.
The second is between foreseeable and unforeseeable absences. A scheduled physical therapy appointment is foreseeable and carries an advance-notice expectation. A migraine on a Tuesday morning is not, and is governed by the as-soon-as-practicable standard. The same employee on the same certification generates both kinds, and a good policy addresses each separately.
What the Regulation Says
The governing text is unusually direct for an employment regulation, and it is worth reading rather than paraphrasing, because the paraphrases circulating online consistently soften it.
Two neighboring provisions fill in the picture. For unforeseeable leave, notice must be given as soon as practicable, and the regulation says it generally should be practicable for the employee to provide that notice within the timeframe your usual requirements prescribe. For foreseeable leave, 29 CFR 825.302 permits you to require compliance with the same usual and customary requirements.
There is also a waiver rule that catches informal employers. If you do not waive your internal leave rules, you may take appropriate action under them for a failure to follow your usual notification requirements. The implication runs the other way too: an employer who routinely lets people text a manager instead of calling the designated line has arguably waived the designated line, and cannot suddenly enforce it against one person.
What You Can Require
The permitted list is broader than most small employers assume, and the practical ceiling on it is your own ordinary practice rather than anything specific to leave.
| Requirement | Permitted? | The condition attached |
|---|---|---|
| Calling a designated number or named person | Yes | Named in the regulation itself as an example |
| Reporting each absence on the day it occurs | Yes | Must match what you require for any unscheduled absence |
| Calling before the start of the shift | Yes | Same notice window you apply to ordinary sick days |
| Requiring the employee to reference the approved leave | Yes | Calling in sick alone is expressly not sufficient notice |
| Requiring expected duration and a callback number | Yes | Reasonable information reasonably related to administering the leave |
| Two-step reporting to a manager and an administrator | Yes | Upheld in litigation where it was the employer's standard process |
| Advance notice for foreseeable treatment | Yes | Up to 30 days where the need is known that far ahead |
| Requiring reasonable scheduling of planned treatment | Yes | Employee must make a reasonable effort not to unduly disrupt operations |
The row worth dwelling on is the fourth. Once you have approved someone for intermittent leave for a specific condition, a call that says only that they are sick does not put you on notice that this particular absence is a leave absence. The regulation places that burden squarely on the employee, and it is the single most useful sentence to quote in a policy, because it converts a recurring ambiguity into a stated expectation.
What You Cannot Require
The limits are narrower than the permissions but they are where the liability lives, and each one is a variation on the same theme: you cannot make leave harder to use than ordinary absence.
The third item in that second column trips up employers who are trying to solve a suspected abuse problem with paperwork. Frequent certification demands are separately regulated and are not a call-in question at all, and layering them onto a call-in policy is a reliable way to turn a defensible procedure into a burdensome one. Where you genuinely suspect a pattern, the tools available are recertification and consistent attendance enforcement, which the FMLA abuse guide covers in more detail.
The fourth item is the quiet one. Selective enforcement destroys a policy more reliably than a badly drafted policy does. If your designated line is genuinely how absences get reported, enforce it for everyone. If in practice half the team texts their manager, you do not have a designated-line procedure, you have a piece of writing.
The Unusual Circumstances Exception
The exception is real, it is narrow, and the regulation supplies its own examples rather than leaving employers to guess.
How this plays out in practice is that the employee's own conduct usually settles it. Courts assessing an unusual-circumstances defense look at whether the person was actually unable to make contact, and phone records have repeatedly undermined the claim. An employee who sent hundreds of text messages during the period they say they could not call has answered the question themselves.
The operational lesson is to ask rather than assume, and to document the answer. When a call does not come, reach out, ask what happened, write down what you are told, and make the assessment on those facts. That is a five-minute process that converts a judgment call into a record.
Can You Discipline for a Missed Call-In?
Yes, and the case law on this is consistent enough to be genuinely reassuring. Where a call-in policy was applied consistently, the employee knew about it, and no unusual circumstance excused the failure, courts have upheld discipline and termination.
| Case | What the employer required | Outcome |
|---|---|---|
| Soutner v. Penn State Health (3d Cir. 2021) | Two calls: a designated call-off line plus the leave administrator | Termination upheld after nine unscheduled absences; policy held not to conflict with the FMLA |
| Chitwood v. Ascension Health Alliance (7th Cir. 2026) | Same-day reporting to the administrator plus supervisor notice as soon as practicable | Summary judgment for the employer; retroactive designation after termination failed |
| Acker v. General Motors (5th Cir.) | Two-line reporting to an absence line and a benefits line | Upheld; the employee's own phone records defeated the unusual-circumstances argument |
| Koch v. Thames Healthcare | Standard no-call, no-show reporting | Termination upheld; extensive call and text activity undercut any claim of inability to report |
The 2026 Seventh Circuit decision is the one to know, because it addresses intermittent leave specifically and it addresses the maneuver employers see most often. The employee attempted to designate absences as intermittent leave the day after she was terminated. The court held she was never denied leave to which she was entitled, and pointed to her failure to report the absences when they occurred with no showing that she was unable to. Retroactive designation, on those facts, does not rescue an absence that was never reported.
Two cautions before you take comfort in that. First, some of these decisions are non-precedential or circuit-specific, so they show the general direction rather than a guarantee in your jurisdiction. Second, every one of them turned on a consistently applied policy that the employee knew about. Remove either element and the same facts produce a different result.
The Decision Sequence
When a call does not come, work through four questions in order rather than reacting to the absence itself. This is the sequence that keeps a routine attendance issue from becoming an interference claim.
Notice what the third and fourth questions are actually testing. They are not about the employee at all. They are about whether you built the procedure correctly before anyone needed it, which means the outcome of a missed call-in was substantially determined months earlier by how you wrote and applied the policy.
Building the Procedure
If you do not have a written call-in procedure, or you have one that was inherited from a template and never examined, here is the sequence I would follow at a business with five to fifty people.
Policy Language You Can Adapt
Five clauses cover the ground. These are drafted to be readable by the person who has to follow them, which matters more than legal density, because a procedure nobody understands is a procedure nobody complies with.
Before publishing any of this, run it against your existing attendance policy and your employee handbook. The most common conflict is an attendance policy that already sets a different notice window, which leaves you with two rules and an argument about which one governs. A ready-made structure to start from sits in the FMLA policy template.
What to Log and When
The procedure is only half of it. What determines whether you can defend a decision six months later is what got written down at the time, and this is the part that is genuinely scattered across every other guide on this topic.
One detail in the middle block deserves emphasis because it is easy to get wrong at small companies. Intermittent absences should be deducted based on the hours the employee would actually have worked, not a default assumption. Per a September 2025 Department of Labor opinion letter, entitlement is calculated on the employee's actual normally scheduled workweek, including mandatory overtime and excluding voluntary hours. An employee on a 50-hour mandatory schedule does not have a 40-hour week for these purposes.
If You Have Fewer Than 50 Employees
The federal FMLA generally does not apply to you, and it is worth saying that plainly, because every other page on this topic assumes a large employer with a third-party administrator and a call-off hotline.
Coverage requires a private employer with 50 or more employees in 20 or more workweeks in the current or previous calendar year, and the employee must work at a location with at least 50 employees within 75 miles. A twelve-person agency clears neither bar. The FMLA guide covers eligibility in full.
The practical version for a small employer is that you do not need the apparatus. You need one named person who takes the call, one written rule about what the employee has to say, and a record of each absence tied to the approved leave. That is achievable for a team of twelve in an afternoon, and it is most of the value.
What Changed Recently
Three developments in the last year affect how intermittent absences get reported and counted, and none of them has reached the general-purpose guides yet.
| Development | When | What it means for your procedure |
|---|---|---|
| Seventh Circuit ruling on retroactive designation | March 2026 | Reporting after termination does not rescue absences that were never reported when they occurred |
| DOL opinion letter on travel time | January 2026 | Travel to and from a covered appointment is protected leave, so the absence you record may legitimately exceed the appointment length |
| DOL opinion letter on entitlement calculation | September 2025 | Deduct against the actual scheduled workweek including mandatory overtime, not a default 40 hours |
The travel-time letter is the one likely to change a real conversation at your company. If someone has a certified 45-minute monthly appointment and is out for three hours, the instinct is to question the gap. Per the Department of Labor's January 2026 guidance, leave may be used not only for the appointment itself but also for the time traveling to and from it, and the medical certification does not have to specify travel time for it to count. Only travel directly related to obtaining the care qualifies, so a detour for personal errands is not covered.
The practical adjustment is small but worth making: when you compare a reported absence against a certification, compare it against the appointment plus reasonable travel rather than the appointment alone. Getting this wrong produces exactly the sort of unfounded suspicion that leads to a badly reasoned discipline decision.
Where Employers Get This Wrong
The failures cluster into six patterns, and every one of them is a policy or documentation problem rather than a legal-knowledge problem.
If you address only one of them, make it the first. Consistency is doing most of the work in every case that has come out well for an employer, and it is entirely within your control. A mediocre call-in procedure applied uniformly to everyone is a far better position than an excellent one applied only to the people on leave.
Frequently Asked Questions
Can you require employees on intermittent FMLA to follow call-in procedures?
Yes. Under 29 CFR 825.303(c), 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. The regulation gives calling a designated number or a specific individual as its own example of a permissible requirement. If the employee does not comply and no unusual circumstance justifies the failure, FMLA-protected leave may be delayed or denied. The requirement must be your usual and customary rule, applied to all absences rather than invented for leave users.
Do you have to call in every day on intermittent FMLA?
That depends on the employer's policy, and daily reporting is generally permissible for unscheduled absences because it mirrors what most employers require of any absent employee. What you cannot do is impose a heavier reporting burden on leave users than on everyone else. A rule requiring a call on each day of absence is defensible when the same rule applies to an ordinary sick day. A rule requiring multiple daily check-ins from someone on approved leave, when nobody else is asked to do that, invites an interference claim.
Can you discipline or fire an employee for not following FMLA call-in procedures?
Yes, where the policy was consistently applied, the employee knew about it, and no unusual circumstance excused the failure. Courts have repeatedly upheld terminations on these facts. In Soutner v. Penn State Health, the Third Circuit affirmed summary judgment for a hospital that fired an employee for accumulating unscheduled absences she had not reported through the required channels, noting that a policy requiring an employee on approved FMLA leave to report the absence does not conflict with the FMLA. The consistency and notice elements are what make the difference.
What counts as unusual circumstances under the FMLA call-in rule?
The regulation names the clearest examples itself. An employee who requires emergency medical treatment is not required to follow the call-in procedure until their condition is stabilized and they have access to and are able to use a phone. The regulation also gives the example of a parent taking a child to the emergency room during an asthma attack, who is not required to leave the child in order to report the absence. Being busy, forgetting, or preferring to text a coworker are not unusual circumstances. The test is whether compliance was genuinely not possible.
Is calling in sick enough notice for intermittent FMLA leave?
No, not once the condition is known to the employer. Where an employee seeks leave for a reason for which the employer has previously provided FMLA-protected leave, the employee must specifically reference either the qualifying reason or the need for FMLA leave. The regulation is explicit that calling in sick without providing more information will not be considered sufficient notice to trigger the employer's obligations. Your policy should say this plainly, because employees frequently assume an approved leave designation covers every future call.
Can someone else call in on the employee's behalf?
Yes. The regulation states that notice may be given by the employee's spokesperson, such as a spouse, adult family member, or other responsible party, if the employee is unable to give it personally. A policy that requires the employee personally to call, with no exception for incapacity, is the kind of rigid requirement that becomes indefensible in exactly the situation it was written for. Build the spokesperson exception into your written procedure rather than deciding it case by case under pressure.
Can a call-in procedure itself be FMLA interference?
It can, if it is unreasonably burdensome or applied only to leave users. The regulation permits usual and customary requirements, which is a ceiling as well as a permission: your FMLA call-in rule cannot be stricter than the rule you apply to non-FMLA absences. Courts have found that a burdensome approval process can constitute interference. Requiring multiple calls to different numbers is lawful where that is genuinely your standard practice, and hard to defend where it was introduced after someone was approved for intermittent leave.
What should an employee say when calling in an intermittent FMLA absence?
Enough to connect the absence to the approved leave. In practice that means three things: that the absence relates to a previously approved leave, roughly how long it is expected to last, and a number where the employee can be reached. Write those three items into the policy so the person answering the phone knows what to ask and what to record. Vague reporting is the most common source of later disputes, and it is nearly always the result of nobody having specified what a compliant call sounds like.
Does the FMLA apply to a business with fewer than 50 employees?
Generally no. The federal FMLA covers private employers with 50 or more employees in 20 or more workweeks in the current or previous calendar year, and an employee must also work at a location with at least 50 employees within 75 miles. But state family and medical leave laws frequently apply at much lower thresholds, and state paid family and medical leave programs often reach very small employers. A business approaching 50 employees should also build the procedure before it becomes covered, because retrofitting one while someone is already out on leave is considerably harder.
How do you track intermittent FMLA absences accurately?
Log the call at the moment it happens, code the absence against the leave entitlement rather than general sick time, and deduct the hours the employee would actually have worked. Per a September 2025 Department of Labor opinion letter, entitlement should be calculated on the employee's actual normally scheduled workweek, including mandatory overtime and excluding voluntary hours, rather than defaulting to 40. Compare each absence against the certified frequency and duration so that a pattern outside the certification surfaces as a recertification question rather than a suspicion.