March 2016 – Employee Absences Do Not Make the Heart Grow Fonder, by Emily Coody Marks

Employee Absences Do Not Make the Heart Grow Fonder
by Emily Coody Marks, Esq.

Employee absenteeism is inevitable, so is excessive absenteeism. Dealing with this issue is particularly difficult for employers because it gives rise to many different considerations: application of employer policies, the Family Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), Title VII, the Pregnancy Discrimination Act, the Uniformed Services Employment and Reemployment Rights Act (USERRA), the Fair Labor Standards Act (FLSA) etc.

Employee Absences Do Not Make the Heart Grow Fonder

“But this is an at-will state”, employers say; “I can fire an employee for any reason!” Not so. Employers in at-will states can fire an employee for any legal reason. Say an employee has excessive absences and the employer has a policy that says an employee with a certain number of absences will be automatically terminated. On the day that the employee’s absences become excessive under the policy, the employer terminates. Good idea? Only if you like EEOC investigations and litigation.

If you have an automatic termination policy for excessive absences, do me a favor. Pull your policies up on the computer, scroll down to the automatic termination policy, put your cursor at the end of the policy, and hit delete.

You may be thinking: “You mean I can’t fire someone who doesn’t come to work?” Of course you can. You just need to make sure the termination does not violate the law.

This is where a simple phone call to your employment lawyer can mean the difference between a legal termination and protracted litigation.

Here are examples of questions I might ask when an employer calls to say he plans to terminate an employee for excessive absenteeism:

Excessive Employee Absenteeism
Why has the employee been absent?
Has the employee recently complained about the workplace?
Has the employee recently taken leave under the FMLA, ADA, USERRA, etc.?
Have any other employees had the same number of absences but not been terminated?
Have you given the employee a warning about the number of absences?
Do you see where I am going? If your employee has excessive absences because she is pregnant, she may claim her termination violates the FMLA, the ADA, Title VII, and/or the Pregnancy Discrimination Act. This is especially true if you have had a male employee with the same number of absences, but he was not terminated. If the employee has recently complained about harassment in the workplace, he may claim his termination violates the anti-retaliation provisions of Title VII.

So what should employers do?

First, have a lawyer review your policies.

Second, provide HR training for your decision-makers so they know how to implement policies within the confines of the law.

Third, communicate with employees who start to exhibit behavior that indicates attendance problems are on the horizon.

Fourth, document all of the above.

Fifth, document all of the above! Documentation goes a long way in defending an employment action so get in the habit now before you learn its value the hard way.