You can enforce your attendance policy and discipline employees for excessive absenteeism, even if an employee misses work for medical reasons. Just make sure you consider potential obligations under the FMLA and ADA first.
Q: We have an employee who constantly is calling in sick, taking time off for doctor’s appointments, and leaving early. These absences are very disruptive to our office, but we are concerned that they may be protected under the FMLA or ADA. Can we discipline the employee 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 most 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).
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 and the absence is not protected by the FMLA or ADA (see below).
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 required. Both the FMLA and the ADA limit your right to discipline or discharge employees for absenteeism caused by a protected medical condition.
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 the employee’s own or a family members serious health condition (and up to 26 weeks to care for a seriously ill or injured military family member injured in the line of duty). 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.
So, if the employee’s absences are caused by a serious health condition protected by the FMLA, you should disregard any absences related to the condition. Of course, you can require that the employee provide medical certification as allowed by the FMLA to substantiate the need for the time off under the FMLA.
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. Thus, if your employee has a medical condition that meets the disability definition, then any absences related to it may be protected by the ADA.
But, if you determine that the absences are not protected by the FMLA or the ADA, the best way to manage this type of absenteeism is to focus on the individual problem employee and follow a progressive discipline program.
For example, your supervisors should put the problem employee on notice, provide counseling about improving attendance, and document the warnings and steps taken. Then, if the absenteeism continues, you are in a strong position to take needed corrective action to discipline, or even terminate, the employee according to your normal policies.