Employers aren’t supposed to count FMLA-qualifying absences against their employees. If you’re deciding whether to fire an employee for attendance problems (under a no-fault attendance policy, for example), you must make sure you aren’t counting FMLA leave against her.
However, all is not lost if you accidentally add in an FMLA absence—as long as you can show you still would have fired the employee because of other attendance problems.
Recent case: Laura Estrada worked for Cypress Semiconductor and had an attendance problem. The company had a complicated attendance and disciplinary system that allocated different points to different unscheduled absences.
Cypress told Estrada she had accumulated enough points to warrant termination, and that she couldn’t miss any more work. The same day, she took an unscheduled one-hour break that should have lasted just 15 minutes. The company fired her.
She sued, saying that an audit of her attendance points clearly showed she had been unlawfully docked for a day off following outpatient surgery, which she said was FMLA leave.
Cypress explained that it would have fired her anyway even if it excluded those points because she was already over her allowable leave when she defiantly took the long break.
The court tossed out Estrada’s case. (Estrada v. Cypress Semiconductor, No. 09-3005, 8th Cir., 2010)
Final note: Be sure you consistently apply your attendance policy. For example, you can’t be tougher on someone who took FMLA leave than someone who didn’t.