Vigilant Blog

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Oct 10, 2012

How To Address Attendance Problems when the FMLA is Also in Play

Q&ALeave Laws 

Q: My employee is frequently absent, although some absences are protected under FMLA. How do I address her attendance problem without an FMLA retaliation claim?

A: Very carefully. There’s no free pass on missing work, but disciplining a frequent FMLA user can be tricky. The best approach is to use a leave tracking form, designating protected and unprotected absences. When the employee accumulates enough unprotected absences to trigger an attendance violation, it’s time to address the situation. Ignore all protected absences when handling the discipline. Comments like, “Because you’re never here,” or “Because you’ve taken so much time off,” can be ambiguous and could imply the employee is being punished for taking protected leave. Be very explicit that only her unprotected absences are being counted against her.

This website presents general information in nontechnical language. This information is not legal advice. Before applying this information to a specific management decision, consult legal counsel.