You have a right to expect your employee to do his or her job. You have a right to expect him or her to show up to work (whether on your premises or via a remote location). Typically attendance is considered an essential job function. So, if your employee misses work too many times, wouldn’t you have the right to terminate his or her employment? It’s time for the Attorney’s Stock Answer Number One: It depends…
Let’s look further into this point.
First, I hope you have a clear and understandable attendance policy, and that you have made sure that all your employees know about it. Assuming you have done both, if you are always applying that policy in the same way with every situation, you still risk violating the Family Medical Leave Act, the Americans with Disabilities Act/Americans with Disabilities Act Amendments Act (which I’ll just refer to collectively as the ADA) and, in some cases, the Pregnancy Discrimination Act. Let’s look at a real, live case example.
A former county dispatcher and corrections officer suffers from chronic migraines and severe endometriosis. Let’s pause here for a moment. We already know that this employee is likely disabled within the meaning of the ADA, and therefore may be entitled to some reasonable accommodations on that basis alone. Okay, let’s continue. In May, 2017 she sustained an off-duty fracture to her leg and received a 6-week FMLA leave. So far, so good. The first problem occurred when she was allegedly disciplined via 2 warnings for absenteeism during her FMLA leave. That’s already a likely FMLA interference and/or retaliation.
Later the same year, this employee informed her supervisors that she was pregnant. Due to severe nausea, dehydration and weight loss, she used sick leave. Her employer allegedly failed to advise her of her FMLA rights or that she could request reasonable accommodations due to her disability or for pregnancy-related complications. On January 30, 2018, she was terminated for abuse of sick time and missing work due to pregnancy, which, allegedly required a hospital stay and home health care ordered by a doctor.
You probably won’t be surprised to hear that this employee sued, alleging violations of FMLA, the ADA and the Pregnancy Discrimination Act and applicable state laws. The parties settled for a total of $50,000. Here’s what her employer had to say on the matter:
“She had a history of missing work due to some sickness and illness, and she was on family medical leave, and then she became pregnant and she missed work,” he said. “We had what we thought were sufficient reasons to terminate her, but we felt like there were some places where we might could’ve been able to do things differently. … We felt like it was best to just try to resolve it.”
Hmmm. I think we can read between the lines here. (By the way, if you’re interested, you can read the settlement agreement here.)
Yes, in general, if an employee has an excessive amount of absences you may be able to terminate his/her employment. If it’s for medical reasons and the employee is FMLA-eligible and s/he has not exhausted his/her leave time though, termination would probably violate the FMLA. Similarly, disciplining someone for absenteeism while they’re on FMLA is probably not a smart move.
What if the employee is not FMLA-eligible? If you have 15 or more employees, then you are subject to the ADA/ADAAA. This employer knew (or should have known) it had an employee with medical issues that qualified as a disability, so it would have been obligated to at least try to work out a reasonable accommodation with her. A reasonable amount of leave that enables an employee to recover from medical conditions and return to work (with or without another reasonable accommodation) will often be required as a reasonable accommodation under the ADA. Finally, if an employee is pregnant and experiences complications, and if you would provide the same type of accommodations to another employee who is not pregnant you are probably obligated to provide it under the Pregnancy Discrimination Act.
Okay, just another few takeaways:
- Have a designated point person that is not the employee’s direct manager deal with requests for medical/sick leave or accommodations for medical issues (including pregnancy). It can be Human Resources, it can be an Office Manager or anyone else that is not the direct manager. Why? Direct managers often inadvertently incur liability on behalf of a company because they mishandle these types of requests. Train the manager to immediately hand off all such requests to the point-person.
- Train the point person on FMLA, ADA, pregnancy accommodations and any applicable state or local paid sick or family leave laws.
- Don’t retaliate against any employee that requests leave time or other accommodations or who alleges violation of their rights under FMLA, ADA, the Pregnancy Discrimination Act or other applicable laws.
- Review and monitor compliance with your policies and procedures and address any problem areas.
Let’s stop here for now.
Contents of this post are for educational/informational purposes only, are not legal advice, and do not create an attorney-client relationship. Consult with competent employment counsel in the state(s) in which you employ people with your specific questions.
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