Want to fire employee for attendance problems? Make sure no absences are FMLA-related

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in FMLA Guidelines,Human Resources

It’s frustrating to deal with employees who call in on short notice to say they won’t be able to make it to work. Even so, don’t let it get to you. An angry reaction could launch an FMLA lawsuit.

That could happen if you are already thinking about terminating the employee. If you happen to fire her when she calls in sick with a legitimate FMLA reason, count on being sued. It will be almost impossible to prove you weren’t motivated by her request to take FMLA leave.

Recent case: Jamie wasn’t a reliable employee. Once, she called in sick after her request for leave was turned down. Co-workers said she told them that was exactly what she was going to do if her request was rejected.

After several more unscheduled absences, management began considering termination. Then she failed to show up one day. Instead, she called from the emergency room, explaining that her mother had just been taken to the hospital and she needed to care for her.

Several days later, Jamie was terminated, ostensibly for her past attendance problems. She sued.

The 3rd Circuit Court of Appeals said the timing of her firing was suspicious. It decided she should have a trial on whether her employer illegally considered her FMLA absence when firing her. (Lichtenstein v. University of Pittsburgh, No. 11-3419, 3rd Cir., 2012)

Final note: Regularly go over attendance records to make sure no FMLA-related absences are being counted against employees.

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