Discipline for attendance during FMLA leave?

Q. Before we could counsel an employee about ongoing attendance problems, she was approved for intermittent FMLA to care for her mother. However, she continues to have attendance problems unrelated to her FMLA leave. Can we proceed with counseling and possible disciplinary actions while she is under FMLA?

A. Yes, but tread carefully. You can treat absences un­­re­lated to FMLA leave the same as you otherwise would, provided you don’t treat the employee more harshly because she is using FMLA leave.

She could argue that since she was not counseled about attendance until she was approved for FMLA leave, you are retaliating against her for using FMLA leave.

So, you want to be comfortable that her non-FMLA absences warrant discipline under your policies and that others with similar attendance problems have been treated similarly.