Here’s a basic way to avoidtrouble: Before punishing employees for poor attendance, double-check to make sure that none of the time they missed included FMLA-qualifying leave.
That way, there’s no question about whetherwas a factor in discipline.
Recent case: Donna frequently missed work over a three-year period at her insurance job. When a supervisor asked HR to tally up the absences, it turned out Donna had far exceeded the limit that warranted discipline.
But before Donna’s boss took action, he wisely asked her to list which absences were for FMLA-related reasons. Donna handed in her list, and that time was subtracted from thetally. Then HR double-checked the figures, discovering another 18 FMLA hours she’d missed. Still, Donna was over the limit and was placed on warning status, which required no more unauthorized absences.
Soon after, she wanted to take more leave after her father died. But she failed to follow the proper call-in procedures, notifying a co-worker of her leave instead of her immediate boss. She didn’t show up for two days and was terminated for violating the discipline terms.
She sued, alleging that her attendance tally originally included FMLA hours, so everything that flowed from that tally was tainted. But the court tossed out her case, saying the employer had done everything necessary to ensure no FMLA hours were counted, even if it started with erroneous records. (Lovland v. Employer’s Mutual Casualty, No. 11-2076, 8th Cir., 2012)
- Ex-employees: Gone but not forgotten Courts' broader definition of 'employee' expands your liability
- Work with your attorney to preserve evidence
- Carefully consider FMLA request to prevent double damages
- Employer's mistake doesn't extend FMLA leave
- Attempted suicide: Proof of disability ... or grounds for dismissal?