Human Resource Blog

Excessive Absentism

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I have an employee who is continuously calling in sick. Although he has had sick time to take he is now stating that he has hurt his knee playing softball (personal time) and will need to undergo surgery. I know that FMLA will take effect but can we fire this individual before he takes his leave because of his sick leave abuse?

This is a touchy issue. If the employee has abused sick leave recently, and those absences have nothing to do with the injury to his knee, then it is likely that he can be terminated. Suppose your company permits 5 absences per year. He has racked up 10, and the last 3 have been for a cold or the flu. You could legitimately terminate the employee. Ideally, you would have given him a written warning for excessive absenteeism at least two or three times, with a final warning resulting in termination.

The US Department of Labor enforces the FMLA or Family and Medical Leave Act. As you know, this law permits an employee to take up to 12 weeks of unpaid, job-protected leave for a serious health condition. An injury requiring surgery is almost always a serious health condition.

Unfortunately, if the employee has not been disciplined in the past, he probably cannot be now. The question the US Department of Labor is likely to ask is: If this employee\’s absenteeism in the past has been such a problem, why hasnt he been disciplined or terminated for it already? FMLA permits the employee to take time off intermittently to go to doctors appointments, etc. At a minimum, he should fill out the FMLA papers now, so that every hour he is missing from work counts as part of his accumulated 12 weeks of leave.

For both FMLA and unemployment benefits, only the most recent absence counts. Suppose this employee has totally abused sick leave by taking off work to go fishing, at least 5 times in the past. Suppose that you can even prove this, because you have witnesses who went fishing with him. As far as the US Department of Labor is concerned, that is irrelevant. The employees past abuse of the company sick leave policy doesnt change his rights under FMLA. He is entitled to FMLA leave regardless of his past performance. (The US Department of Labor would say that you could have fired the employee at the time. But since you did not, he is now entitled to FMLA leave.)

This is a frustrating situation for any employer, because the most recent absence is just the straw that broke the camels back. The FMLA absence would not be a problem, if this employees attendance had been good to begin with. Unfortunately, the employer probably cannot take action under these circumstances.

You are justified in firing this employee if you have a clear paper trail of written warnings, and if the absence is unrelated to his knee injury. Otherwise, the best course of action is to give him FMLA leave. When he returns, there is a good chance that he will soon be up to his old tricks, taking too many (non-FMLA) days off work. At that point, you will have cause to write him up for excessive absenteeism and eventually terminate him.