Human Resource Blog

Excessive time off for different surgeries

Can HR give a written warning for excessive time off for surgeries?

Time off from work for a serious medical condition may qualify for protection under the federal Family and Medical Leave Act (FMLA) and/or Americans with Disabilities Act (ADA).

The FMLA entitles covered, eligible employees to take unpaid, job-protected leave for specified family and medical reasons. Assuming the employee has worked for a covered employer for at least 12 months, has at least 1,250 hours of service for the covered employer during the 12-month period preceding the leave, and works at a location where the covered employer has at least 50 employees within 75 miles then the employee is eligible for FMLA. An eligible employee may take up to 12 workweeks of leave in a 12 month period for a serious health condition such as a medically necessary surgery or, in this case, multiple surgeries.

The FMLA applies to any employer in the private sector who engages in commerce, or in any industry or activity affecting commerce, with 50 or more employees each working day during at least 20 calendar weeks in the current or preceding calendar year. The law also covers state and local governments as well as public and private schools.

An employer cannot discipline or otherwise retaliate against an employee for taking leave under the FMLA. Doing so would violate federal law. However, if the employee is not eligible for FMLA protected leave or has exhausted his leave entitlement an employer is within its rights to consider unexcused absences as a time and attendance issue and discipline the employee in accordance with company policies or practices.

An employer must also consider if the need for time away from work is due to an ADA protected disability. The ADA prohibits employers from discriminating against employees with physical or mental impairments that substantially limit a major life activity or major bodily function.

Private employers, state or local governments, labor unions, and employment agencies with at least fifteen employees must comply with the ADA.

Though the ADA doesn’t explicitly entitle employees to time away from work, it does require employers to make reasonable accommodations to allow employees with disabilities to do their jobs. Depending upon the circumstances, time off from work may be considered a reasonable accommodation. Employers aren’t required to provide a reasonable accommodation that would impose an undue hardship on the operation of the business. Undue hardship is defined as an action requiring significant difficulty or expense for the employer considering its size and resources.

An employee requiring a significant amount of time off from work who is unable to perform essential job functions may not be covered under the ADA. Thus, disciplinary sanctions for time and attendance issues would be warranted.

It’s important to have open communication with the employee regarding the reasons for the excessive absences and his eligibility, or lack thereof, for leave or reasonable accommodations. Open dialogue with the employee ensures the employer complies with applicable laws and proper procedures are followed.