FMLA

splendid splinter · November 2002

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An employee has a car accident and breaks his writing arm; he is a payables clerk. His doctor's note says he is unable to work. He qualifies for FMLA. After a few weeks it was found that his license had been revoked for driving under the influence of alcohol. Shortly thereafter, his doctor released him to come back to work, but he cannot get to work. He calls our business to see if a worker could come and get him so he can come to work. He was terminated because he could not get to work. Do you see any problem with the termination decision? Splendid splinter (not bragging...just a nickname)

I should add that the FMLA protection period had not expired at the time of the termination.

Am I right in thinking there has to be a period of time for a FMLA returnee to be at work before that person, per the FMLA, is considered to be "back to work"?

Rockie · November 2002

It appears to me that this is a valid termination as it did not have anything to do with his FMLA as he had already been released to come back to work; he did not have means to come back to work (for whatever reason). I would say the termination was in order.

Janet · November 2002

I agree with Rockie. Attendance is presumably an essential job function x:o and you're under no obligation to provide transportation to work!

Ty · November 2002

I also agree after an employee has been released to return to work it is not your obligation to make sure the employee has transportation to work. After all remember when hiring you can't ask an employee if they have transportation to get to work. It is their responsibility.

Don D · November 2002

I'll be number 4 to agree, sorta. He might still, however, complain to DOL that you unjustly and illegally terminated him because of your emotional response to his DUI while he was right in the middle of arranging transportation to work. In fact his new driver will show up with him at the hearing and will testify that indeed he was ready to transport him when you fired the guy. Hatchetman has given me all this imagination!

LindaS · November 2002

I would tend to agree with all the others but I think a couple of issues should be addressed:

1) Make sure there is a written Attendance Policy in place that addresses how many days an employee is allowed to be absent from work before any disciplinary action is taken. There also should be a limit on the amount of days for a no call-no show (i.e., three days). If there isn't a policy that you would need to look at what was acceptable attendance for other employees in a similar position. If other employees have been allowed to miss work for personal reasons and you terminated this individual the first day he was unable to report for work, you might have a problem.

2) If the employee had any personal/vacation days remaining after his FMLA leave he/she should have been allowed to exhaust them before the termination as long as other employees are allowed to call in and use this type of leave at the last minute.

I agree that the employee has the responsibility to report to work but if I were looking at terminating an employee immediately after FMLA leave for this reason, I would make sure that the options listed above were exhausted first. This way you can defend the decision if he/she decided to file a suit claiming they were discriminated against for taking the leave in the first place.

FMLA

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