Firing for attendance? FMLA doesn’t count

Here’s something to remember when you are ready to dismiss an employee for poor attendance: You can’t use any FMLA leave as a negative factor, and you can’t include any FMLA leave when tallying absences.

Advice: Always double-check your attendance records to exclude any FMLA-approved time from the count.

Recent case: Jamie transferred from another area of the University of Pittsburgh Medical Center to work as a psychiatric technician. That meant she was already eligible for FMLA leave. Within a short time of starting her new job, she was tardy at least six times and absent three times. The absences included a Dec. 1 call-off for which she submitted a false doctor’s note and a Dec. 30 incident in which she had applied too late to get her shift changed and then wound up arriving two hours late and leaving three hours early.

Then, in early January, she called off to take her mother to the emergency room. She phoned the next day to request FMLA leave going forward. Two days later, the hospital told her it had terminated her based on her December absences.

She sued, alleging FMLA violations. She contended that she had been terminated because she needed FMLA leave for her mother’s care.

At trial, the hospital presented the jury with a detailed explanation of the December absences and records showing it made the termination decision on Dec. 30.

The jury believed the hospital’s account, and found that it had terminated Jamie before she requested FMLA leave. The hospital effectively argued that it never considered any FMLA absences in its decision. (Lichtenstein v. UPMC, et al., No. 14-1143, 3rd Cir., 2015)