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‘Attendance Management’ Category


Reasonable Accommodation

I have an employee who has an on-going medical condition and is protected. We have downsized to a small firm of 9 and need each professional to be able to cover the most ground possible-optimally (w/o quality compromise).

Lately said employee has been getting sick again and at crucial moments when he/she has been needed because of un-moveable deadlines. It causes stress to her/his team and leaves an unaffordable gap for the time he/she is gone.

The principal gets very annoyed .
I point attention to “what are the needs of the business” in an effort to fram it that way and explore legal options handling this situation. My style as HR and general support is usually to find a solution to the ned first–like hire part time to fill the skill need and then come up with a solution for an unpredictable employee.

There seems to be a reluctance to take consequential action. The company really cannot afford to”carry” someone” and this person really cannot be expected to “stretch”. I would appreciate any thoughts on this.

An employer with only nine workers is not covered under the two main federal laws that would apply to this situation, the ADA and FMLA. The Americans with Disabilities Act (ADA) applies to employers with 15 or more employees. The Family and Medical Leave Act (FMLA) covers employers with 50 or more employees.

Depending upon the state workers’ compensation law, a covered employee is entitled to wage assistance but the employer may not have to hold his job if doing so would cause significant hardship to the employer. Some states may permit the termination of the employee but require the employer to rehire him once he is able to return to work; while other states prohibit the termination of an employee on workers’ compensation.

Also, some states have adopted personal leave of absence laws in addition to federal legislation. Most of these laws don’t apply to small employers.

Without knowing why the employee is considered protected, it’s difficult to provide sound feedback but here are some things to consider.

Unless the employee’s absences are protected by the ADA, FMLA, worker’s compensation, or state personal leave laws, at-will employees can be terminated at any time as long as the reason is not illegal. Absenteeism and sub-standard work are legitimate causes for disciplinary action including termination.

It’s best to follow policy or established practice. If an employee in the past with a short term disability i.e. medical condition causing absences or sub-standard work was given accommodations and continued his employment then the same entitlement should be given to this worker. However, if this worker’s absences are more excessive and the hardship to the company is more significant, disciplinary action is warranted.

If no policy or past practice exists, it’s best to adopt a clear policy on how to handle this matter now and for future occurrences. The policy depends on what the company can afford to offer. Sample personal leave policies can be found on the internet and edited to meet company standards.

Aside from offering the employee a short term personal leave and, again, assuming no federal or state laws apply, an option is to have a discussion with the employee concerning her absenteeism and quality of work. Inform the employee that her work performance is not up to company expectations and future performance issues will lead to disciplinary actions. Be sympathetic to the employee’s personal condition but be clear that accommodations have already been made and his work still continues to suffer. Follow progressive discipline. If the poor performance continues after warnings then termination would be warranted.

Hiring a part time employee to assist with business need due to the employee in question being unreliable is only masking the problem. Yes, doing so will help the team and overall business short term. However, not dealing with the actual issue will only prolong the situation and set a standard for other employees. It’s best to address the situation now and establish guidelines for the employee’s future with the company as well as other employees who may find themselves in similar situations one day. Hope this helps!


Attendance/Suspension issues

Hello I have an employee who in the past 2 and half yrs. of employment has been late to work once a month and has had one written warning for no-call no other warnings attached to his file. He has applied in the past for FMLA, this last incident he did not notify his supervisor of an absence till 2 hours into his shift that he had a family emergency with his son in the hospital. and could not contact him to let him know that his son was in the hospital. Company is planning to suspend him with a written warning for not giving proper notification of absence for one day according to this because he has a prior no call no show warning in his file and continues to be late but their has been no documentation for that or verbal warnings on record of the tardy. HE has proof of medical dr. notes for his soon being seen. Is this legal? By the way we are located in California and are a union member company.

The California Family Rights Act (CFRA) and the federal Family and Medical Leave Act guarantee covered employees up to 12 work weeks of unpaid, job protected leave for qualified reasons. The leave can be taken intermittently. Generally, an employee must provide an employer with thirty days notice of the need for a forseeable leave, such as a planned medical treatment. However, when the need for leave is unexpected, the employee must notify the employer as soon as possible and practical. The federal Department of Labor provides the following example: If the employee’s child has a severe asthma attack and the employee takes the child to the emergency room, the employee is not required to leave the child to report the absence while the child is receiving emergency treatment. So, disciplining the employee for failure to follow call out procedures during a family emergency which he can prove seems inappropriate regardless of the write up on file.

Also, an employee doesn’t have to specifically request FMLA leave to be covered. It’s the employer’s obligation to recognize the notice of a possible FMLA qualifying event and make the appropriate determination. In this case, an employee stating his son is in the hospital should immediately make a supervisor or HR staff consider the need for FMLA leave. An employer cannot discipline an employee for exercising his FMLA rights, even if the employee didn’t specifically request a FMLA leave.

The lack of write ups in the employee’s file is concerning. If the employee has been late at least once a month for over two years there should be several disciplinary actions on file or at least documentations of conversations had with the employee concerning his constant tardiness. Additionally, an employee should be spoken to about each individual insubordination issue as it arises. The supervisor/HR shouldn’t wait until several issues have occurred and then all the sudden take severe disciplinary action like suspension. A policy of progressive discipline is vital in protecting an agency from wrongful termination or discrimination allegations.

Progressive disciplinary procedures are fairly standard in collective bargaining agreements (CBA). I’m surprised a CBA would allow for a covered employee to be suspended with only one write up on file in two years. Assuming the CBA permits such action, it’s still in the employer’s best interest to not suspend the employee for failing to call out in a timely manner during a family emergency. With the information you’ve provided its better practice to discuss the situation with the employee, especially to ensure the proper administration of FMLA. A documentation of the discussion can be placed in the employee’s file but not as a written warning. If the employee is late to work in the future, the tardiness must be addressed with him immediately. At that time a written warning can be issued which clearly states tardiness is against company policy and future tardiness will result in further disciplinary action including suspension and up to termination.


Can an exempt employee skip lunch?

Can an exempt employee skip lunch and leave early? I have an employee that comes in at 7:30 am and leave at 3:30pm, and she skip lunch.

Break and meal period requirements under the Fair Labor Standards Act (FLSA) generally apply to non-exempt workers only. However, you should check your state employment laws to ensure there are no requirements for breaks or meal periods for any employees. If your state doesn’t have legislation regarding the matter then it’s up to the employer to adopt a policy or practice. Regardless of legal mandates, it’s important to encourage employees to take their breaks or meal periods, if offered. There is statistical evidence that employees who take breaks during the workday have increased physical and mental well being which, in turn, increases employee productivity.

June 19th, 2013, 8:17 PM |  Posted in: Attendance Management, Labor Laws |
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Poor job Performance

What would be the procedure to terminate an employee for poor job performance so that person could not recivie unemployment benifits.

Progressive disciplinary action is usually the procedure to follow in order to terminate an employee for poor job performance.  The following steps should be taken:

  1. Formal verbal warning, this warning should be documented and placed in the employees file. Discuss specific issues, dates, and times of the poor performance, along with the next step if the poor performance continues.
  2. First written warning, this warning should provide specific details about the continued poor performance. Include the date the verbal warning was issued, and that failure to correct the poor performance will result in a second warning and will carry a suspension from work.
  3. Second written warning, documenting the continued poor performance, previous discussion, and the suspension (usually 2 days without pay), continued poor performance will result in termination of employment.
  4. Final written warning, document the continued poor performance, previous warning, and the termination of employment.
Keep the final meeting brief, and let the employee know that your decision is final. If you have a exit procedure (cleaning personal effects) review it with the employee. If your state requires a termination letter you can provide it to the employee at this time. Your state may also require you provide information regarding unemployment, however the employee will probably not qualify. Finally, COBRA may apply provided the termination was not for gross misconduct.
The progressive discipline process is the best practice to follow in order to defend any lawsuit that may be filed (wrongful discharge). The process provides a clear record of actions taken by the employer to prevent termination. However, if you have already followed the process or if the performance was in violation of your company rules and regulations, you can skip the progressive discipline process.
July 13th, 2012, 7:49 AM |  Posted in: Attendance Management |
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Military leave

Hello, I have limited experience with military leaves… I have an employee that has been on military leave since August 5, 2011 with an expected return to work date of June 2012. We know from the media and other outside sources that his troupe has returned from active duty the first week of May as expected, however he has not made any contact with HR as to if or when he is returning to work. We have made attempts to get in contact with him, however he has not returned messages. When he left he stated that he wanted to have a month off when he returned and would contact HR before June. We currently have other staff filling his position and they are wondering if he is coming back and if they are out of a job. How long do we need to keep his position open and what should my next step be?

Returning military with one year of active duty, need to submit an application for reemployment within 90 days of the release from service.  A recommendation is that he make written application for reemployment, but it can be verbal or implied.

If the employee fails to report or apply for reemployment, after the 90 day period, he does not forfeit his entitlement to reemployment. After the 90 day period, he is subject to your normal conduct work rules or established policy or practices regarding disciplinary action with respect to absence from scheduled work. If you follow a “no call -no show” policy then he would be subject to that policy.

In the meantime, I would send a certified letter to his last known address, and supply him with his rights and responsibilities under USERRA.

June 26th, 2012, 8:48 AM |  Posted in: Attendance Management |
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