Human Resource Blog

FMLA vs. non-FMLA

	Termination
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Can an employee who is on FMLA be terminated due to arriving at work late or calling in for reasons not related to FMLA? This employee has a LONG history of absenteeism and tardiness. This employee has been written up MANY times and given a final notice that if he/she was to come in late again he/she would be terminated. This employee then obtained / went on FMLA.

An employer can take any action against an employee on FMLA that the employer would take anyway, if the worker was not on FMLA. However, you may want to be cautious in this situation. The employer cannot take any adverse action because the employee is on FMLA.

As you probably know, FMLA permits employees to take intermittent, unscheduled leave in some cases. For example, an employee with severe morning sickness, which has been certified by her doctor, could come in late or leave work whenever the illness occurs.

The best way to handle this situation would be to ask the employee why he or she was late or absent. Unfortunately if the reason is related to the FMLA leave, the employer will probably have to overlook it, and count the absence toward the employee\’s total FMLA leave. If the employee says she was late because she forgot to set her alarm clock, she can be terminated. If she says she was late due to her FMLA health condition, she probably cannot legally be terminated.

There is a loophole for employers here. Under new regulations introduced in 2008, employees must report properly in almost all cases when using FMLA leave. So if the employee did not follow the established procedures for calling in to report they would be tardy, he or she can be terminated for that. (There is an exception to the reporting rule for certain circumstances where the employee is physically unable to call the employer and report that they will be absent. For example, an employee who has a major heart attack on the way to work would be excluded from this requirement.)