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Forget FMLA absences when rating employee attendance

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in FMLA Guidelines,Human Resources,Leaders & Managers,Performance Reviews

Employers aren’t allowed to count absences covered by the FMLA when they discipline employees. That’s why it’s important to segregate any such absences from performance reviews and any discussions about attendance.

Otherwise, if the employee is fired, she may try to argue that somehow her covered absences were included in the decision process.

Recent case:
Suzette Whitman was a single mother who missed lots of work because one of her children has Down syndrome and others have health problems. Her supervisors often spoke to her about her absences and told her she needed to get her work done.

She sued when she was fired for allegedly poor performance immediately after she returned from FMLA leave to care for a hospitalized child.

The court ordered a trial, concluding there was evidence linking protected attendance with her discharge. (Whitman v. Proconex, No. 08-2667, ED PA, 2009)

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