Offices, hospitals, factories and other workplaces can’t function well unless employees show up when they are supposed to. That’s reality. However, we all know that people do get sick and miss work due to chronic conditions, accidents and serious illnesses. That doesn’t mean you cannot insist on good attendance.
As you enforce your attendance policy, however, make sure you don’t count in any negative way absences covered by the . In other words, if an employee is absent for an FMLA-covered reason (or if she tells you she wants to use ), don’t count the time against her for purposes of enforcing your policy.
Recent case: Darlene Crouch worked for J.C. Penney for 20 years until she was fired. During the run-up to her discharge, Crouch was moved to the weekend shift as a team manager, handling technical problems for the retailer.
In the past, Crouch regularly got the company to certify her for for a chronic health condition—recurring bronchitis. She was able to take that leave by letting her supervisors know when she had a flare-up.
The problems began when she had to have a tooth repaired and got bronchitis at the same time. She missed seven days in connection with dental surgery and an antibiotic treatment plan. However, until she returned, she never told anyone her absence was related to her chronic condition. While she was out, a supervisor sent an internal e-mail stating, “We need someone that we can depend upon to show up on weekends.”
J.C. Penney fired Crouch, citing her poor communication about when she was taking leave, as well problems she had had running her department.
Crouch sued under the FMLA. She asked the court to consider the e-mail evidence that the company was punishing her for taking FMLA leave. The court disagreed, based on timing. At the time the supervisor sent the e-mail, no one in the company knew that Crouch was out because of her FMLA-covered chronic condition. They only knew that she was absent.
The court said employers are within their rights to expect good attendance. They can’t punish employees for taking FMLA leave, but they can punish them for failing to give leave notice in accordance with an attendance policy.
The court found that, once the company knew that Crouch was taking FMLA leave, it never used those absences against her. That meant the e-mail was irrelevant. The court also pointed out that the retailer provided Crouch with a detailed list of improvements needed before she was fired, and nowhere in that document did it mention any FMLA absences. Rather, it focused on her other noncovered absences and her problems. (Crouch v. J.C. Penney, No. 4:06-CV-113, ED TX, 2008)
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