Employee terminated for excessive absenteeism, potential FMLA?

Bucky333

We have terminated an employee for excessive absenteism.  The employee had been discplined prior to termination for being absent or late and her work hours were reduced for two months as part of the discipline.  This reduction reflected her consistent absent schedule of coming in late on Mondays, so the absences were suspect due to the consistency of days off.   We send information to all our employees via email when they are absent for three or more days, does not need to be consecutive.  Her supervisor let us know she had been out for three days and she was sent the FMLA information, but did not respond.  She was terminated for excessive absenteeism. 

She then, after being terminated, contacted me to ask about the FMLA option and since she now has her doctor's certification, she wanted to know how that would affect her termination.  She indicated to me that her notice of FMLA ended up in her junk mail for some reason.  At this point I would like to tell her it doesn't affect her termination...we had no concrete knowledge of a medical condition that could provide eligibility for FMLA and the termination was based on continued absenteeism that was addressed on several occasions in the past.

 We are in California, so we have the CFRA as well, but both CFRA and FMLA require medical certifications for approval.  Does anyone out there think she has a legitimate issue? 

TXHRGuy

You should always send FMLA by paper mail with a signature required for delivery.

 

From what you have written here, you have no way to demonstrate that you timely notified this person of their FMLA rights.  A conservative position would be to reinstate until you disentanle the FMLA issue.  An aggressive position would be to go spend a lot of money on an attorney who will probably tell you the same thing unless they're itching for a fight or this type of thing has already been resolved in the courts in your circuit.

Bucky333

Thanks TXRHRguy, I was afraid of that; we will be changing our practice as of now.     But the employee did sign receipt of our personnel policies which included our FMLA policy, we are really consistent on postings in all our staff rooms; and most likely she received a notice in the past which I may be able to prove in time, wouldn't this be some support?  I wouldn't assume that the employee would seek legal counsel, but you never know, she seems more concerned about unemployment, which we probably wouldn't fight.  Anyone else have experience with this type of situation?

TXHRGuy

[quote user="Bucky333"]Thanks TXRHRguy, I was afraid of that; we will be changing our practice as of now.     But the employee did sign receipt of our personnel policies which included our FMLA policy, we are really consistent on postings in all our staff rooms; and most likely she received a notice in the past which I may be able to prove in time, wouldn't this be some support?[/quote]

Unless they changed this in the new regs, and I'm as certain as someone who didn't read them can be that they did not, you are out of luck.

Each request for FMLA is entitled to a timely written response from the employer.  So far, nobody has found a way to escape this burden.