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Offer FMLA, but still enforce attendance rules

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in FMLA Guidelines

Employees occasionally have to step in on short notice to help care for a family member and may legitimately need FMLA leave to handle those responsibilities. Go ahead and suggest FMLA time off.

However, until the employee takes you up on the offer, you can hold her to your regular attendance policy.

Recent case: Maria Simmons worked for the Woodycrest Center for Human Development. She had a spotty attendance history, missing days at a time and often coming in late or leaving early.

Then her daughter gave birth to a child who suffered from drug withdrawal and HIV. Simmons unexpectedly took over care of the infant and stopped coming to work for about a week.

On the first day she was out, Sim­­­­mons’ supervisor e-mailed her, saying she was concerned that taking on this obligation might mean more missed work. Then, apparently rethinking the situation, the supervisor immediately sent another e-mail inviting Simmons to request leave in writing. She concluded, “I will be more than happy to grant you this time.”

A week went by with no communication from Simmons, so the center terminated her. It was only then that Simmons put in a request for FMLA leave. Then she sued, alleging interference with her right to FMLA leave.

The court tossed out her case. It concluded Simmons was terminated because she had a terrible attendance record and hadn’t bothered calling in or asking for leave for more than a week. Her post-termination FMLA request was not good enough. (Simmons v. Woodycrest Center for Human Development, et al., No. 10-Civ-5193, SD NY, 2011)

Final note: If you have a call-in policy, make employees follow it. As long as you apply the policy to everyone else, you can also apply it to those on FMLA leave.

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