Human Resource Blog

Sick leave with a Doctors Note

I’m in HR. How would you respond to this written complaint by an employee: I am a Correctional officer with the Sheriffs Dept. in Allegany County in Maryland. They wrote my up over missing 7 days of work since January of 2008. I have had female problems/Surgery and illnesses due to other officers comming in sick with the flu because they are afraid to call off. Can they discipline me with a write up and suspend me for one day? I used my sick leave and had doctors notes that covered me stating that I was unable to attend work. Any help you can give would be greatly appreciated.

Here is how we would respond to this employee: There are really two issues here. Excessive absenteeism, and unpaid leave under FMLA.

Even if each absence is excused, an employee can be disciplined for taking too much time off work, also known as excessive absenteeism. Each employer has the right to establish the maximum number of allowable absences. Many companies set that limit at 5 to 7 per year. Apparently, this employee has exceeded the employers maximum number of days absent in a 10-month period, and has been disciplined for it. The employee may well have good reasons for being absent. But at some point, the employer can simply say “enough is enough” and hire someone with a better attendance record for the position. Suspending the employee without pay is one type of disciplinary measure that is acceptable. Others would be issuing a written reprimand or terminating the employee.

As long as the absenteeism policy is enforced fairly among workers of both sexes and all races, religions, colors, etc then it is legal.

Law enforcement agencies usually have higher standards for attendance than other employers, because public safety is at stake. If half of all correctional officers were absent every day, chaos would prevail. So good attendance is just a requirement of the job.

The argument that the employee is catching the flu and other illnesses from coworkers is a little silly. First of all, it is almost impossible to accurately identify the source of a particular illness in real life. Second, if the coworker had the same flu and came to work, that would imply that this employee could have worked with the flu if she chose to.

It is possible that some of this employees absences should have been covered under FMLA, the federal Family and Medical Leave Act. FMLA applies to every public agency, regardless of the number of employees. Under FMLA, the employee is entitled to take up to 12 weeks of unpaid leave per year due to her serious health condition. She need not use all of the time at once. Employees cannot be disciplined for using FMLA time. When the employee had surgery, (assuming the employer or HR department was aware that this was why she missed work) she should have been offered FMLA leave. FMLA can run concurrently with paid sick time, so the employee might still have been paid for the time. Normally an employee must request that time off be counted as FMLA leave within 2 days of returning to work. However, if the employer knew the worker had serious health problems, the employer should have advised her of her right to unpaid leave under FMLA. If the employee believes that there has been a violation of FMLA, she should contact the U.S. Department of Labor at www.dol.gov.

It appears the employee also has continuing female problems. If this is true, she may qualify for intermittant FMLA. This would enable her to take unpaid time off work only when she is ill. FMLA requires that a doctor certify a serious health condition that requires time off work. The employee still has to follow the usual reporting procedures, but she cannot be disciplined or terminated for taking time off for the certified medical problem.