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HR MATTERS E-TIPS
THIS WEEK’S E-TIP: Sick Leave Abuse and Discipline Q&A
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THIS WEEK’S E-TIP: Sick Leave Abuse and Discipline Q&A
Cold and flu season is in full swing. But what can you do when you
suspect an employee is abusing your sick leave policy? |
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THIS WEEK’S E-TIP: Sick Leave Abuse and Discipline Q&A
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?
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.
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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.
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