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Cold and flu season is in full
swing. But what can you do when you suspect an employee is abusing your
sick leave policy?
Q: We have an employee who constantly is taking time off for doctor’s
appointments, calling in sick, and leaving early. These absences are very
disruptive to our office, but we are concerned that he may be protected
under the FMLA or ADA. Can we discipline him for what we consider to be
excessive absenteeism?
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[Creating HR Policies or Employee Handbook?]
A: As a general rule, if an employee’s absences are in excess of your
stated policy (for example, the employee has taken more paid days off than
provided by your policy), you likely can take whatever disciplinary action
you feel is appropriate. But, before taking any action, you should
consider whether you have any obligations under the Family and Medical
Leave Act (FMLA) or the Americans with Disabilities Act (ADA).
Most employers define excessive absenteeism as absences in excess of what
you allow by policy (free
Attendance and Punctuality policy ). Thus, authorized absences that
are taken according to your
absence and leave policies are not considered excessive. So, if the
employee’s absences are covered by your paid time off policies, you should
allow them. Note, though, that simply because an employee has a doctor’s
note to justify an absence, you may still consider the absence excessive
if the employee has used all of the days allowed by your policies.
However, you may have to disregard absences required for reasons covered
by the FMLA and the ADA when determining whether an absence is excessive
and discipline is called for. Both the FMLA and the ADA limit your right
to discipline or discharge for absenteeism. However, coverage under these
laws is by no means automatic, and you must analyze each situation on its
own merits.
The FMLA requires covered employers (those with 50 or more employees and
all public agencies and schools) to provide eligible employees with up to
12 weeks of unpaid, job-protected leave in any 12-month period, for
certain family and medical reasons. In addition, you cannot discriminate
against employees who take FMLA leave. As a result, you cannot take an
employee’s FMLA-covered leave into account under “no-fault” attendance
policies or consider the absences “excessive” under your absenteeism
policy.
Similarly, the ADA, which applies to employers with 15 or more employees,
requires covered employers to provide reasonable accommodations to
qualified individuals with disabilities unless doing so would impose an
undue hardship. Reasonable accommodations may include part-time or
modified work schedules, as well as unpaid leave. The ADA, in effect,
requires that these be considered “excused” absences or, in the case of
no-fault attendance policies, not counted for purposes of determining if
discipline is appropriate. In addition, you may have to accommodate
disabled employees by allowing them to take more unpaid leave than is
provided by your leave policy unless this would impose an undue hardship
on the operation of the business.
So, bottom line, you do have the right to discipline employees who abuse
your sick leave policies, but you need to check first to see if your
options are limited under either the FMLA and ADA.
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Subscribers to the
Personnel Policy Manual (print/online) and HR Policy Answers on CD can
find more information on excessive absenteeism in Attendance and
Punctuality, Chapter 701, note 9. For more information on the FMLA, ADA,
and protected absences, see Attendance and Punctuality, Chapter 701, note
13.
Not a subscriber? If you would like to order one of our policy chapters,
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