Unplanned absences can disrupt even the best-run workplaces. Employees who call in sick at the first sneeze cause inconvenience for everyone else.
Of course, you don’t want truly sick employees to come to work if they have some contagious illness. That can be far more disruptive in the long run than a single sick day. Nor do you want to discourage employees from taking legitimate , either for personal illness or to care for a family member. If you send signals that employees shouldn’t take leave they’re entitled to, you could wind up on the losing end of an FMLA interference lawsuit.
Your challenge as an employer: Craft and enforce an attendance policy that allows or even encourages legitimate sick leave use while discouraging abuse.
Recent case: Dawn Kinsella and her husband worked for American Airlines; their son has diabetes. She got approval over the years to take intermittent FMLA leave to care for the boy when the need arose.
American Airlines has clear policies requiring employees who use sick leave for what they believe are FMLA purposes to call a special hotline within 48 hours of taking leave. In addition, all employees who are going to miss work due to illness have to call another phone number before their scheduled shift to report their pending absence.
American Airlines also has a policy stating that fraudulent use of any sick leave benefit is grounds for discharge.
When Kinsella called in sick on one occasion, HR noticed that her husband was off that day, too. An HR rep pulled their attendance records and spotted a pattern of both Kinsellas being off on the same days. HR ordered surveillance for the next mutual absence, and the video showed that on a day Kinsella was allegedly sick, she was seen leaving and returning from their house and sweeping out the garage.
When Kinsella returned to work, she was questioned about her activities. She admitted leaving the house—and also having a party and taking a friend to the airport. The airline fired her.
Kinsella sued, alleging that she had planned to call the FMLA hotline when she got back to work, but never got a chance. She also claimed she was being punished for her years of usage.
The court didn’t buy it and dismissed her case. (Kinsella v. American Airlines, No. 08-C-2666, ND IL, 2010)
Note: By having clear processes and policies in place, American Airlines was able to show that it honored legitimate FMLA usage, while punishing attendance abuse. The fact that Kinsella had never been denied past FMLA leave worked in the airline’s favor. The court could easily conclude that American Airlines had acted reasonably, while Kinsella had not.
Final note: For more on sick leave policies, see “Follow 4 keys to legally manage employee absenteeism.”
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- 10 Secrets to an Effective Performance Review
- Defend against being sued personally for your mistakes
- High bar for retaliation case when someone else is victim
- Investigation results don't have to be accurate—just honest
- FMLA: Revised Regulations