Don’t fire for FMLA absence, even with attendance problems

The FMLA provides covered employees with up to 12 weeks unpaid leave for a serious health condition. Employees have a duty to let their employers know they need that leave, and must tell them as soon as practical if they need emergency leave.
    Because the FMLA is an entitlement law, employers can’t interfere with taking leave. But what about a chronically absent employee whom you’ve given one last chance? Do you have to sort out whether that final absence is covered by the FMLA—even if you could have fired him or her for absenteeism before?
    The answer is unequivocally “yes.” Make absolutely sure the triggering absence isn’t covered by the FMLA. If you don’t, you may lose the case even before it goes to trial, as the following case clearly illustrates.
    Recent case: Julie Taylor was a generally unreliable employee, running up multiple unexcused absences. Her employer warned her that one more absence would mean termination. That was generous—the company’s attendance policy would have permitted firing her at the time she got the last-chance warning.
    One day she woke up in pain and called in 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 trial court ruled in her favor without a trial, reasoning that using an FMLA-covered absence as the “last straw” violated the FMLA. That was true, wrote the court, even though Taylor could have been fired for her previous absences. (Taylor v. Virtua Health, No. 05-4271, DC NJ, 2007)
    Final note: Always make sure you exclude any FMLA-covered absences from an attendance policy. And double-check that the rationale doesn’t include any FMLA-covered absences before you authorize any attendance-related discharge.
    Remember, too, that in an emergency, employees have to let you know as soon as practical that they need leave. That may mean before the beginning of the shift, but may be later if the employee is incapacitated.