FMLA question

Can an employee be terminated if they have used all 12 weeks of FMLA and have not worked 1,250 hours in the previous 12-month period?

We have an employee who has used all FMLA and not worked the required hours. He returned to work after 26 weeks of short-term disability/FMLA running concurrently, with a letter from his doctor indicating he could return to full duty. The employee has cancer and prior to his short term disability period he was using intermittent FMLA.

Since returning to work on 9/27, he has been absent 7 work days. I informed him we would excuse his absences for doctor/chemo appointments if he followed our attendance policy by pre-arranging the appointments and bringing in documentation. However, he keeps calling off telling me he "doesn't feel good".

We have a point-based attendance policy and I am giving him attendance points for his absences. Once he reaches 18 points - which will be soon - he will be terminated. Can we do this or do we have to let his poor attendance continue? Knowing his past practices, this could go on forever. The person is a production employee and we need to know in advance when he will be absent so someone can cover for him.

Any insight would be appreciated. Thank you.


  • 3 Comments sorted by Votes Date Added
  • If the employee is not eligible for FMLA based on lack of hours, and assuming you don't have a state version of FMLA for which he is qualified, you just need to consider ADA. As cancer is a disability, I would engage him in the interactive process of determining whether allowing him to be gone is a reasonable accommodation. As chemo treatments are draining for most people, perhaps allowing him to be off the day after the chemo is a reasonable accommodation. Unless there are special circumstances, allowing him to be gone at whim is not reasonable (in my humble opinion).
  • Allowing for doctor appointments, chemo, and even the day after would be reasonable. He won't even request time off for appointments scheduled in advance. I'm sure people know when they have chemo treatments and doctor appointments. They usually don't call you on the phone and tell you to come in for a chemo treatment in the next hour, do they?

    If he would just pre-arrange his absences that would be fine. But calling off right before his shift in my opinion, is unreasonable.

    Thank you.
  • I think Davids is on target. Before you terminate, you should take a good look at what you need to do regarding the ADA. Also, I recommend that you contact qualified legal counsel before termination.

    Your last post was over a week ago so can you give us an update?

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