Human Resource Blog

Lawsuits and Absenteeism

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	Termination
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We have given an employee numerous warnings about her absenteeism, but she continues to fail to come to work on time or at all. The employee has threatened a lawsuit because we fired her. Does she stand a chance of winning in court?

It sounds like you have given your employee ample warning regarding her absenteeism. It is within your company’s right to expect that your employees should come to work when they are receiving wages. There are a few circumstances where your employee may stand a chance if she does not come to work regularly. For example, if she is ill, she may be covered by the Family Medical Leave Act (FMLA) or, if she is pregnant, her absences could be covered by the Pregnancy Discrimination Act (PDA). However, she needs to provide you with proof and fair notice if she is not going to come to work for either of these reasons and you are within your right to request this information and medical documentation from your employee.

Be careful: The American’s with Disabilities Act clearly states that an employer is not allowed to ask an employee about disabilities. Therefore, if you ask your employee about whether or not a disability is making it impossible to come to work, then you could be setting yourself up for a legal battle. However, bear in mind that you are perfectly within your right to request a doctor’s note from your employee if she claims that her absences have to do with a disability or illness. You cannot, however, ask the doctor for a diagnosis.

When you ask one employee for a doctor’s note, you will have to make it a policy that anytime you have a sick patient or one that has to take time away from work to tend to an illness or to tend to personal matters, you ask for a doctor’s note. It is not legal to discriminate against one employee, even if that employee consistently fails to come to work.

If you do face a court battle, your attorneys will likely tell you that it is important that you supply copies of the letters and company policy that you have given to your employee. Your company policy should always be very clear about when an employee should notify an employer about being absent from work and what method that notification should take (such as a written letter.)