Human Resource Blog

Discharge an employee for violating obligations, then claims migraine for absence.

We have an employee that was in a 2nd written warning as of Thursday, he also has 18 unexcused tardys in a 12-month period, more than 18 is considered excessive and would result in discipline. On Friday the employee called in, he is out of PTO, therefore it is an unexcused absence, our handbook states more than one unexcused absence is excessive and therefore would result in discipline. This brings him to a final written warning as of Friday, if he has another unexcused absence or unexcused tardy the next level is discharge. On Saturday he was late again, therefore reaching 19 tardys. This would be his discharge. He also called in on Monday again and said he would not be in. This is another unexcused absence, either way he would be discharged. However, I called him to inform him, left a message for him to call me back, he did not call until this morning and left me a voice mail he said he did not answer my call yesterday because he had a migraine and wanted me to call him back today and let him know if he has a job or not. He was supposed to be in at 7:30 a.m., the call was left on my voice mail at 7:08 a.m., we also have a mandatory notice requirement you must call an hour before your start time if you are going to be absent. Had he shown up for work on Monday he would have been discharged, now knowing he is claiming to have a migraine on Monday, and migraines are protected under FMLA, can we still discharge him for the violations prior to this knowledge?

Yes, you can still discharge the employee for tardiness, even though he is now eligible for FMLA for his migraines.

An employer can take any action against an employee on FMLA, that would have been taken anyway, if the employee were not on FMLA.

To understand this issue better, lets separate the tardiness from the absenteeism. It appears that they are, in fact, unrelated issues under your discipline system.

The employee was tardy 18 times in a 12-month period. He was tardy a 19th time on Saturday, which will result in termination. Our suggestion would have been that you not return the employees call on Monday. You let him come to work so that you could tell him in person that he was being terminated for excessive tardiness. This would also allow him to clear off his desk, turn in any keys, etc. (if that applies to this employee.)

FMLA is a separate issue. The employee is not on FMLA, but he has informed you that his absence on Monday was due to a migraine. A migraine is a serious health condition under FMLA. Your responsibility at that point would be to provide the employee with FMLA papers within 5 days. The employee would have to fill out the papers and return them to you within 15 days. These papers would include a certification by his doctor that the employee does, indeed have a serious health condition that requires intermittent absences under FMLA. (It would be very, very unusual for an employee to have a migraine on Friday and again on Monday, so this probably only relates to the Monday absence.)

Because this person is no longer employed by you, the FMLA becomes irrelevant. He is being terminated for an issue that has nothing to do with migraines or FMLA. You are under no obligation to furnish ex-employees with FMLA paperwork.

If the employee is claiming that the Friday absence or Saturday tardiness is due to an FMLA-qualified reason, then the problem is different. If that is the case, please post another question.