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What are the risks of continuing a no-fault attendance policy?

by on
in FMLA Guidelines,Human Resources

Q. Our company’s attendance policy calls for issuing a warning when an employee has three absences. Five absences result in a suspension, and seven absences result in termination. Can we continue this policy?

Employers with such “no-fault” attendance policies may want to reconsider in light of the FMLA.

Given the broad definition of a “serious health condition” under the FMLA, even a one-day absence may qualify as FMLA leave. If an absence does fall under the protection of the FMLA, an employee may not suffer any adverse action as a result of taking the leave. This would, of course, include counting the absence against the employee under a no-fault absenteeism policy.

It should also be noted, however, that employers are not left in the position of having to ignore absenteeism problems. Several courts have held that an employer is not required to “guess” whether an absence qualifies as FMLA leave. While an employee is not obligated to specifically refer to the FMLA when taking a qualifying leave, the worker must at least provide enough information to put the employer on notice that the leave may qualify under the FMLA.

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