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Absences during first 90 days of employment

We have an employee that has been absent 18 days during the first 48 working days of employment. In the last 14 days he has been out with an illness. He has provided a return to work note from his doctor twice stating that he has been released without restrictions, but each time he has continued to call in sick saying that the issue has not been resolved. He is not entitled to FMLA and the only policy we have that he would fall under says the “we will consider granting personal leaves of absence in a few well-defined cases at our sole discretion. A personal leave of absence may be granted by the company up to a maximum of 30 days. An extension beyond 30 days may also be considered by the General Manager, in the event of serious or extenuating circumstances.” This policy does not state that the leave will be approved or that it does or does not apply to newly hired personnel. Can we terminate this employee even though we have not extened the 30 days leave for excessive absenteeism?

A few states, notably California, have state leave laws that might apply in this situation. But in most states, yes, you can terminate this employee even though you have not extended the 30-day leave of absence to him.

If the employee has a permanent disability, he or she might be entitled to unpaid time off as an accommodation under ADA. This entitlement begins on the first day of work. However, it does not apply if the employee is expected to make a full recovery.

If your reason for not extending the 30-day leave of absence was due to the employees race, color, age, sex, religion, national ancestry, etc. that would be illegal discrimination. However, if the reason is that the employee has been with the company for such a short time, or has performed poorly when he was at work, you are within your rights to terminate him.

We also see an issue with the employee not returning to work, even when he has a note from the doctor saying that he can. Most companies would count that as an unexcused absence.

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This entry was posted on Monday, October 4th, 2010 at 1:11 pm and is filed under
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