Here’s a basic way to avoidtrouble: Before punishing an employee for poor attendance, double-check whether any of the time she’s missed was for .
That way, there’s no question about whether FMLA leave was a factor in discipline.
Recent case: Donna Lovland frequently missed work over a three-year period. Finally, a supervisor asked HR for the official absence tally. It turned out, she had far exceeded thelimit that warranted discipline.
But before Lovland’s boss recommended action, he asked her to review her FMLA leave use and list days she had missed for FMLA-related reasons.
She handed in her list, and that time was subtracted from the absenteeism tally. Then HR double-checked the figures, discovering another 18 FMLA hours Lovland had missed. But she was still over her absence allotment and was placed on warning status, which required no more unauthorized absences and strict adherence to attendance rules.
However, Lovland was allowed to take FMLA leave when her father became seriously ill. Shortly afterward, he died.
After Lovland returned to work, she was still upset over her father’s death and wanted more time off. Unfortunately for her, she failed to follow the proper call-in procedures. She was supposed to phone her immediate boss, but called a co-worker instead. She didn’t show up for two days. She was terminated for violating the terms of her discipline.
Lovland sued, alleging that, because her attendance tally originally included FMLA hours, everything that flowed from that tally was tainted.
The court tossed out her suit. It said the employer had done everything necessary to ensure no FMLA hours were counted against Lovland, even if it started with erroneous records. (Lovland v. Employer’s Mutual Casualty, No. 11-2076, 8th Cir., 2012)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Must we pay out unused vacation days when we fire employees or they quit?
- Beware close timing between FMLA leave, firing
- Do we owe STD benefits to employee who has been terminated after FMLA leave expires?
- Accommodation may mean leave plus reinstatement