Make sure employee's "triggering absence" isn't covered by the FMLA

Question: The Family and Medical Leave Act (FMLA) is one of those special “e-word” laws — entitlement.

While some employment laws (like the ADA) say you don’t have to accommodate employees if doing so would cause “undue hardship,” that’s not the case with the FMLA. The law doesn’t care about your hardship. You can never interfere with a person’s FMLA leave; nor can you fire them for taking FMLA leave. Period.

But what do you do when a chronically absent employee—who’s already received a last-chance warning—is absent again? Do you have to sort out whether that final “last-straw” absence is covered by the FMLA, even if you could have fired the person weeks earlier for being MIA?

The answer is unequivocally “yes.”

Like it or not (and fair or not) you must make sure that the “triggering absence” isn’t covered by the FMLA. If you don’t, you may lose the case before it goes to trial, as the following case clearly illustrates.

Case in Point: Julie Taylor was a generally unreliable employee, running up multiple unexcused absences. Her employer, a New Jersey hospital, warned her that one more absence would mean termination. That was generous: The company’s attendance policy allowed her to be fired at the time she got the last-chance warning.


Soon after, Taylor woke up in pain one day and called to report she needed gall-bladder surgery. When the company fired her before she had a chance to get medical documentation, she sued under the FMLA.

The result? The court ruled in her favor without a trial. It said that using an FMLA-covered absence as the “last straw” violated the FMLA. That was true even though she could have been fired for her previous absences. (Taylor v. Virtua Health, No. 05-4271, DC NJ, 2007)

Lesson Learned … Without Having to Go to Court: Always make sure you exclude any FMLA-covered absences from attendance-related discipline.

Before you allow a supervisor to drop the hammer on an oft-tardy employee, it’s wise to double-check that the firing rationale doesn’t include any FMLA-covered absences.

Remember, too, that in an emergency, FMLA regulations say employees have to let you know “as soon as practicable” that they need leave. What does that mean? The regulations say that typically amounts to “at least verbal notification to the employer within one or two business days of when the need for leave becomes known to the employee.”