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Such a policy can cover absences relating to personal or vacation leave, time off covered by workers’ comp and even . Of course, the policy must allow for up to 12 weeks of leave—but you don’t have to allow more time off.
Recent case: Brian Dotson worked for a recreational products manufacturer, drilling and cutting materials in cramped spaces. When Dotson hurt his back, he went out on FMLA leave. He began receiving workers’ comp benefits, had surgery and was off for 12 weeks. The company informed him that it was running his FMLA leave concurrently with his time off under the workers’ compensation system.
The company had a tough attendance policy that required discharge whenever employees missed more than 12 weeks of time, including FMLA leave. It routinely fired employees who missed more than 12 weeks, no matter the reason.
When the company fired Dotson under the attendance policy, he sued. He alleged that the policy was illegal.
But the 7th Circuit Court of Appeals disagreed. It said that company policies can’t give employees fewer rights than they have under the FMLA, but that employers don’t have to give greater rights. Thus, employers are within their rights when they grant exactly the 12 weeks the FMLA requires. (Dotson v. BRP, No. 07-1375, 7th Cir., 2008)
Final note: What about a disabled employee who needs more time off as an accommodation? That’s an open question for now. Consult your attorney if faced with a disabled employee who has exhausted FMLA leave—especially if he or she doesn’t want more time off, but needs a simple workplace accommodation.
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