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Mar03

90 day probationary period

I have an employee that is a couple weeks away from their 90 calendar days of employment. During their 90 days they have fallen ill and were hospitalized for 2 weeks. They have since returned to work but are still recovering. Under Florida Law is there any way to extend the time frame the 2 weeks that this person was hospitalized to give them a chance? Those 2 extra weeks could make the difference in the decision made however what is best for the firm is most important. Any advice?

Probationary period is a matter of company policy, not employment law. There is nothing magic about the first 90 days of employment. Nor is there a law that the employer must consider the first 90 days a probationary period.

However, we will say this: Generally, an employee whose attendance or performance is borderline during the probationary period, does not improve after the probationary period is over. Many, many employees are on their best behavior during the initial 90 days. Afterwards, their performance may well reach new lows.

Most employers would terminate an employee who missed two weeks of work during the first 90 days. That is excessive absenteeism by almost any standard, and the employee is not entitled to unpaid leave under FMLA. (If the employee meets the EEOC definition of disabled, then the employer may be required to grant it.)

Like any good supervisor, you are giving this employee the benefit of the doubt. But our experience is that if this employee is a good fit, as the 90-day deadline approaches, there should be no doubt in your mind that the employee is doing a good job. The fact that there are reservations, or that you hope the employee will improve if given more time, is a huge, huge, red flag.

If you extend the deadline for the employee, you may very well find that you must fire the worker anyway at some point. If the employee has been with you for more than 90 days, you will likely end up paying unemployment on him or her. Very simply, keeping a marginal employee is not in the companys best interest (although you may offer to give her a good or neutral reference.)

With the number of people looking for jobs at this point, it should be fairly easy to find an employee who meets or exceeds your expectations with no reservations.

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This entry was posted on Tuesday, March 3rd, 2009 at 11:59 am and is filed under
Performance Management.
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9 Responses to “90 day probationary period”

  1. Get out Says:

    If an extra 2 weeks is that major of an issue to the employer I can tell you now that there are other actions or lack thereof that has led the employer to their decision. Even if they gave the person an additional 2 weeks due to any law, that person would still end up getting terminated.

  2. Gloria Says:

    We hired an individual who has missed a total of 10-1/2 days in her first 80 days of employment. She was not hospitalized during her any of her absences, which consisted of (4) “occurences” of days missed (1/2 day; 3 days; 4 days; and 3 days).

    I am inclined to terminate the employee, since I feel certain that her attendance will only go downhill from here. My question is, “What are the chances of terminating the employee and avoiding paying unemployment?”

  3. Caitlin Says:

    Hi Gloria! Your chances of paying unemployment get better with each day the employee works for you.
    Unfortunately, if the employee is genuinely sick, then her absence is beyond her control and she will qualify for unemployment. If the employee was terminated for poor performance, she might not qualify for unemployment. But it also depends upon a number of other factors, like whether she worked in the 5 quarters before you hired her. Our suggestion is that you let this employee go, even if it means paying unemployment. You are right — the situation is not going to improve. HTH, and thanks for reading the blogs!~ Caitlin

  4. L. Johnson Says:

    What are some reasons to extend a probation period from 90 days to 6 months?

  5. Caitlin Says:

    Hi L. Johnson! Normally if the employer takes this tactic, it is because the employee has a performance issue of some kind. That may be an attendance or tardiness problem, poor work performance or a lack of effectiveness. Again, this is not a tactic we recommend. Usually, the employer is better off just terminating the employee and hiring someone new. HTH, and thanks for reading the blogs!~ Caitlin

  6. Evette Lewis Says:

    I was hired by somebody knew me personally and let go for no reason. She called me at home no write up or no warning.What do I do in situation when I ask her over phone she could not answer was talking very low.

  7. Caitlin Says:

    Hi Evette! In this case, you apply for unemployment benefits. There could be many reasons why you were let go. It is also legal for an employer to let someone go for no reason. HTH, and thanks for reading the blogs!~Caitlin

  8. Linda Says:

    I have an employee that was hired 1/27/14. She has missed 37 hrs and 15 minutes since then but on 8 hrs in her 1st 90 days. I have already had to counsel her 3 times with verbal warnings, twice on job performance being poor and once on trying to force an english employee to speak spanish only and would only talk to her in spanish (the other employee was her immediate supervisor too), Unfortunately I started chemo in March so was not up to par on being alert to her absences. I really feel she is not going to improve that much, but I abhor paying unemployment. Suggestions??

  9. hrlady Says:

    Hi Linda,
    Generally, unemployment benefits are awarded to individuals terminated from their employment by no fault of their own. Thus, it’s up to the employer to prove the employee performed poorly and/or violated company policy. The more evidence an employer has to support the termination decision the better the chance of not having to pay unemployment. Also, most unemployment boards/commissions are inclined to side with the employer if the employer can show that a reasonable effort was made to counsel the employee and there was a final incident that lead to the termination. So, in this case, if the employee had unexcused absences and poor performance in the first quarter of the year but has not had any incidents recently termination may be lawful but unemployment benefits may still be awarded.

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