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?
A. Employers with such “no-fault” attendance policies may want to reconsider in light of the .
Given the broad definition of a “serious health condition” under the FMLA, even a one-day absence may qualify as . 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 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.
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Your Best Defense: Prevention
- Consider ADA before firing after 12 weeks
- Employee being disciplined suddenly gets 'sick'? Don't fall for ruse invoking FMLA protection
- Be prepared to grant FMLA leave for diagnosis of serious health condition