Habitually Absent, Tardy, or Sick? How to Deal with Employees Who Are Not Coming to Work

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Do you have a trouble employee that can never seem to make it to work when they are supposed to? Either they are always late or they are not there at all? How should you go about disciplining this employee, particularly if you have let it slide in the past? Is there any risk to firing someone for claiming too much sick time (even if they are entitled to those days under the terms of their employment)?

First, you need to determine whether any state or federal statutes apply. For example, if the employee has worked for you for at least a year and has worked at least 1,250 hours in the past year, and if you have 50 or more employees within a 75-mile radius, the employee is probably covered by the Family and Medical Leave Act (FMLA). The FMLA requires you to allow an employee to take “intermittent leave” if they are absent because of a serious health condition. So, if they keep missing time due to chronic illness, you may have a federal law to contend with. Some examples of conditions that often qualify for protection under FMLA are: cancer treatments, asthma, diabetes, epilepsy, and mental illnesses. Under FMLA, if the illness is qualifying, the employee would be entitled to up to twelve weeks per year of unpaid leave without losing their jobs.

However, you do not have to pay an employee who is using FMLA leave, and you can require the employee to give you as much notice as possible of their need for leave and to provide medical certification of their serious health condition. You may not be able to discipline the employee for taking FMLA, but you also do not have to pay them or take the reports of their illness on blind faith. Furthermore, if an employee's absences are interfering with her ability to do her job, you may be able to transfer her to a different position that better allows for intermittent leave, but it must be a position that offers at least the same pay and benefits as her current position. If the new position is less desirable in any way than her current position, the transfer could be viewed as retaliation, which would put you in danger of a lawsuit under the Family and Medical Leave Act.

In addition to FMLA, you need to consider whether the employee might be protected by the Americans with Disabilities Act (ADA). The ADA requires you to reasonably accommodate an employee who is a “qualified individual with a disability,” as long as the employee can perform the “essential functions” of his or her job with the accommodation. The ADA contains a complicated definition of “disability,” which is more difficult to meet than FMLA’s “serious health condition.” If an employee's chronic illness rises to the level of a disability, you must reasonably accommodate that disability. A reasonable accommodation might include a transfer to an equivalent position or allowing for intermittent leave beyond what is required by FMLA, but even ADA does not require you to tolerate an infinite number of absences.

If an employee does not qualify as disabled under the ADA and exhausts their FMLA leave for the year, and they still need to call in sick, you may discipline them and even terminate them, unless your state laws provide additional restrictions or the individual is subject to some form of collective bargaining procedure with which you must first comply. To be sure, contact a local attorney with experience in employment and labor laws before taking any action.

Of course, the best way to handle this situation is to have a policy addressing it before it ever arises. Often, these policies can be included in an employee handbook given to the employee as part of their hiring packet. You should cover topics such as FMLA, ADA, and other types of leave, attendance, and discipline. You should also require all employees to acknowledge, in writing, both the policies and receipt of the handbook. And, of course, a policy is only as useful as its enforcement, so you should enforce the policies consistently and equally among all employees subject to its requirements. Making exceptions for any reason can come back to haunt you in the form of claims of discrimination or disparate treatment.

One way to alleviate this problem is to create clearly defined job descriptions for each position in your company. For each job category, you should write a description that lists the “essential functions” of the position. If a position requires more regular attendance than another, you may deem that to be an essential function of the position and implement a different attendance policy for that position, so long as you enforce that policy against all employees who fall into that category uniformly and consistently. Of course, on the other hand, if you tolerate a high number of absences from one employee in the job category, you should be prepared to follow that same precedent for all employees who fill positions similar to hers. So what if you have already allowed the precedent by accident? You may be able to implementing a new attendance policy across the board, giving employees written notice of it, and then enforcing it uniformly and consistently from that point forward. This may not work in all instances, but it will give you a more solid basis for disciplining chronic absenteeism or tardiness than in cases where you suddenly begin enforcing inconsistently against one employee you have singled out as a bad egg.

Keeping accurate and detailed records will also help protect you against a discrimination claim. You should document when an employee is absent and the reason given for the absence, and you should document any disciplinary action taken, including warnings, and provide a detailed explanation of the reason for the action. If an employee is terminated for chronic absenteeism or tardiness, or for any problem for that matter, and there is no record of the problem, it may raise suspicion that the employee was terminated for a different, possibly discriminatory, reason. Having such records may also be important if you need to fight an unemployment claim.

As always, if you are facing this situation you should contact a local attorney who can answer your questions, help you craft appropriate policies, and respond to any risks of liability. Remember, spending a little money now can help you avoid paying a lot of money later. Another good idea can be to obtain insurance to help ameliorate some of the risk associated with your regular business activities, including hiring, firing, and disciplining employees.

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Disclaimer: While every effort has been made to ensure the accuracy of this publication, it is not intended to provide legal advice as individual situations will differ and should be discussed with an expert and/or lawyer.

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