How to Legally Handle a No-Call/No-Show Employee

When you carefully create a work schedule based on people’s availability, it’s frustrating when employees don’t show up for their shifts. It’s even more frustrating when employees don’t notify anyone about their absence because this leaves you understaffed and stressed out. Here’s how to handle a no-call/no-show employee, legally:

What is a No-Call/No-Show Employee?

Life happens, and sometimes employees can’t show up to work. If an employee doesn’t obtain prior approval for their absence and does not provide any warning via phone call or another acceptable method, such as email, this is considered a “no-call/no-show”. 

Employees often have valid excuses when they miss work, such as missing the train, getting into a car accident, or getting sick. Even when unexpected things happen, employers still expect employees to contact them when they can’t show up. When employees call, it gives the employee a chance to account for their absence and it alerts the employer to the need to find coverage for that shift, if necessary.

Job Abandonment

People often mix up a no-call/no-show situation with something called “job abandonment”. An employee who abandons their job typically does not intend on returning to the workplace at all. This often occurs without any warning. This person does not provide the employer with the customary two weeks’ notice– they simply disappear without a trace. 

This isn’t covered by most state laws, so the interpretation of “abandonment” is up to the employer’s discretion. For example, one employer can say that a person has abandoned their job if they fail to show or call after a single day of missed work. Meanwhile, another employer can say that an employee has abandoned their job after a week of missing work.

Can You Fire A No-Call/No-Show Employee?

Ultimately, an employer can fire an at-will employee for any reason, as long as the termination is not based on:

• Retaliation
• Discrimination (race, gender, age, etc.)
• Wrongful termination
• Breaching contracts
• Immigration status

Therefore, an employer may be able to terminate a no-call/no-show employee after a single day of missed work. However, there are exceptions, which are detailed in the next section.

Beware of the Law

If you choose to terminate a no-call/no-show employee, you must be careful. Although it’s tempting to get upset and act quickly when an employee doesn’t show up to work, you need to make sure that you’re not wrongfully terminating an employee by mistake. At the time of their absence, the employee may have been entitled to sick leave, American with Disabilities Act (ADA) leave, or Family Medical Leave Act (FMLA) leave. Therefore, employers need to investigate the absence before taking action. Here are instances where the employee may be entitled to their absence:

The employee may have protected state-mandated sick leave, and might not have to tell you about their absence.

Although the Department of Labor does not require sick leave, many states have their own sick leave laws that give employees sick time. For example, employees in Washington state earn 1 hour of sick time for every 40 hours they work. They can use their sick leave for mental and physical illness, to care for sick family members, to care for their children, and more. This law says that an employer cannot retaliate against the employee for using their earned sick leave. What this means is that if an employee in these circumstances does not call into work when they are sick (or due to any other reason stated above), the employer may not terminate or retaliate against the employee when they don’t show up.

The employee may have leave under the ADA.

If an employee is absent, it’s a good idea to call your HR department to check and see if the employee is using leave under the Americans with Disabilities Act (ADA). If that’s the case, it’s highly likely that you can’t retaliate against the employee for their absence because of the protections afforded to them under the ADA. Although it’s ideal that they call about their absence, there are times where they might not be able to call due to their specific circumstances.

They might have leave under the FMLA.

Employees are allowed to take unpaid, job-protected leave for specific family and medical reasons under the FMLA. They may have 12 workweeks of leave for illnesses, the birth of a child, to care for a family member, and more. They may also have 26 workweeks of leave to care for a covered servicemember.

If an employee is absent from work, they may have filed leave with the FMLA. The Society for Human Resource Management (SHRM) says 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.” Although this is true, if you fire the employee while they’re using FMLA leave, they may have a strong case to say that they were terminated on the basis of retaliation.

What to do When the Employee Doesn’t Show Up

Ultimately, if an employee doesn’t show up to work, warn your HR representative right away. They will be able to tell you whether or not the employee was using FMLA, ADA, or sick leave. After that, try to contact the employee via phone or email to see if you can get in touch with them. Hopefully, they’ll return your call when they have the ability to do so and will explain their absence. From there, you can decide what actions to take.

Create an Attendance Policy

The best way to avoid no-call/no-show issues is to create an attendance policy for your organization. Clearly outline how the employee may request time off and how far in advance they need to ask for that time off. It’s also wise to clarify the consequences for not calling or failing to show up to work for a certain number of days in a row. When everything is clearly outlined, employees will know what to expect when they need to call off work.

Remember to always review your state’s time off and attendance policies in order to remain compliant.

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