Attendance
Mikey1
28 Posts
An employee has been out sick for longer than we allow without communicating to us about when he is coming back. Can we terminate him?
Mikey1
28 Posts
Comments
The Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) must be considered when applying an attendance policy. Disciplining a disabled employee for chronic absence or lateness, could be a violation of the ADA. While courts have not been very sympathetic to the claims of disability-caused lateness, employers may offer a special schedule as an accommodation for a disability. It may be a violation of the FMLA to penalize an employee who takes time off that qualifies for leave under the Act. Employers are subject to national, state, and case law in these areas.
Does the employer fall under eligiblity for FMLA (more than 50 employees in a 75 mile radius)?
Does the employee fall under eligiblity for FMLA (more than 1250 hours in the last year, more than 1 year service, etc)?
Does the sickness/injury fall under FMLA (serious health condition)?
If the answers to these are yes, then the employer needs to immediately send the FMLA paperwork to the employee and give him at least 15 days to certify it. After that, "An employer may require an employee on FMLA leave to report periodically on the employee's status and intent to return to work. The employer's policy regarding such reports may not be discriminatory and must take into account all of the relevant facts and circumstances
related to the individual employee's leave situation...." from http://www.dol.gov/dol/allcfr/ESA/Title_29/Part_825/29CFR825.309.htm
Do you have a written no call/no show policy? Do you have a periodic requirement to report no matter why an employee is out?
Unlike FMLA, which is the employer's responsibility to notify the employee of their rights, under ADA, it is the employee's responsibility to tell the employer that they have an issue that falls under ADA and request reasonable accommodation. Employers can get into hot water by assuming that an employee could be disabled. So it is always best to let the employee bring up the issue under ADA.
So if the employee is not communicating a need (and you should check with his managers to make sure they do not know anything), then you are not responsible to bring up ADA/reasonable accommodations. Especially if you don't even know the reason he is out sick!
Under FMLA, the employee does have a burden to give the employer enough information to suspect a serious health condition although what consitutes "enough" can be very little, especially if you have sufficient contextual knowledge. For example, if you have an employee who you know has a serious health condition and they call in sick and then you don't hear from them for a week, you are expected to know that two things (the serious health condition and the absence) may be connected and make appropriate inquiry. If the employee is not available (for example, hospitalized and you don't know where), you have until 2 days after they return to work (or become contactable again) to make a decision. Ordinarily, they have 2 days (that changed recently to 3, did it not?) to give sufficient notification regardelss of your own notification policy. However, you clearly know that the person is ill. If you know that their illness may constitute a serious health condition under the Act and if the Act applies, then you need to execute your FMLA obligations.
If FMLA does not apply, you may still need to be concerned about ADA. ADA applies to your company if you have 15 or more employees. If ADA apllies, and if this person is a "qualified individual with a disability", then you need to stop and think about whether or not their current period of illness is related to their disability. I agree with the prior poster who said that the courts generally are not very forgiving about requiring tardiness to be an accomodation. In general, if attendance is an essential job function, then you need not accomodate it to the extent that a more flexible schedule is unreasonable. If you are unionized, you will need to talk to counsel in the state of the affected employee to determine the relationship between your CBA and ADA to understand your local circuit's rulings and also to understand if there are any state laws that affect your obligations. Consider also past practice: if this person is a qualified individual with a disability and if they have had "illness" absences before, what did you do? Changing gears on people can easily turn into the appearance of retaliation. Employers have a really bad record at winning retaliation suits.
Finally, there's the compassion issue and how terminating this person will look to the rest of the employees. What if they aren't communicating with you because they are getting a kidney transplant? Perhaps a sick day donation program would be more beneficial for all concerned than termination of employment. Do follow your policies, don't break the law, and don't be un-necessarily mean to sick people because that never plays well in court.