No-fault attendance alert: Think twice before firing FMLA-eligible employee

Employers can use no-fault attendance policies as a way to control absenteeism. There’s no doubt about the effectiveness of no-fault programs, which allow a certain number of unexcused absences without any documentation, and then punish employees who go beyond allowable limits.

But before you fire an employee for breaking your absenteeism rules, carefully consider whether he is eligible for FMLA leave. It’s especially risky to terminate an employee who recently requested FMLA leave, unless you have a solid reason that’s unrelated to FMLA leave.

Recent case: John Plitsas worked for FedEx as a mechanic until he was fired for allegedly lying about a medical appointment. Plitsas sued and argued that the discharge reason was just a pretext for denying him his right to take FMLA leave for a serious health condition.

Here’s how Plitsas found himself terminated: FedEx has a no-fault attendance policy that allows managers to terminate employees who missed more than two days of work without calling in. One day, Plitsas was sent home from work because his supervisor thought Plitsas was sick and observed that he had difficulty walking and appeared dizzy.

Plitsas was hospitalized the same day and spent several days in two different hospitals in two different states before being released with instructions to see a neurologist as soon as possible to get a diagnosis.

Because Plitsas had missed more than two days without calling in, his supervisor called him to inquire why he had been absent. Plitsas explained that he had been in and out of hospitals and promised he would provide documentation.

Meanwhile, FedEx suspended Plitsas for violating the rule and began investigating. When his supervisor again called, Plitsas told him that he had spoken with a doctor at the neurology office. The supervisor heard the doctor’s name as “Giovanni” and later called the office, only to learn that no such doctor worked there. Plitsas was then terminated for allegedly lying about his contacts with the neurology practice.

He sued, alleging interference with his right to FMLA leave and argued that his former employer used his alleged lie as an excuse to terminate him.

The court said a jury should hear the case to decide whose version was true. The judge expressed doubt about the employer’s discharge reason, pointing out that the firing came on the heels of Plitsas’ FMLA request, and the proffered reason could plausibly be an excuse to get rid of an employee trying to use FMLA leave. (Plitsas v. Federal Express, No. 07-5439, DC NJ, 2010)

Advice: When in doubt about what to do, think about how a jury might view your action. If your discharge reason doesn’t pass the smell test, chances are a jury will let you know in no uncertain terms.

In this case, it was clear that management knew the mechanic was ill; after all, a supervisor sent him home. The jury may conclude that management wanted to get rid of him and went looking for an excuse, even though they knew he had been ill.