Drawing the line on tardiness: the legal risks

Q. We’re having tardiness and absenteeism issues with our employees. If we place an employee on probation for an excessive number of times tardy and days absent, can we require no absences at all during the probation period? —C.V., New Jersey

A. Generally, employers can and should expect regular, predictable attendance from their employees and can discipline those employees for excessive absenteeism or tardiness. But employers must be aware of an important risk: Absences or tardiness related to a disability or serious health condition must be treated differently.

If an employee is “disabled” under the ADA or a state disability discrimination law, the employee may be entitled to a reasonable accommodation of a leave of absence for some period.

For example, if an employee with a qualifying disability is absent due to a flare-up of the illness (or needs a doctor’s appointment relating to his or her disability), you can’t penalize the employee for that tardiness or absence. Similarly, if the employee qualifies for FMLA leave—or a related state leave law—you can’t punish him for absences or intermittent leave related to that purpose. However, be aware that employees, even if disabled, are not entitled to unlimited leave under these laws.

Of course, if these same employees are absent or tardy for a reason unrelated to their disabilities or protected leave, you can discipline accordingly.