Can/Should We Terminate?

LindaS

I have a 21-year employee who has approved intermittent FMLA for a variety of conditions. There has always been a question regarding abuse of FMLA but nothing concrete.

Our Attendance Policy clearly states that absences must be reported prior to the start of an EE's shift and no later than one hour after the start of the shift. Failure to call in as required results in the assessment of points under the policy.

Our FMLA approval letter clearly states that an individual on approved FMLA leave is required to call in in accordance with the Attendance Policy unless otherwise authorized by a member of management. It also states that failure to do so will result in the assessment of "points" under the policy.

This EE was scheduled to start at 5:00am last week, and has been working the same schedule since 6/12/08, at his request. He called in after 6:00am last week claiming FMLA. He was not hospitalized or anything, probably just overslept. We have a voice mail system that allows messages to be left at anytime the main switchboard is off.

If we assign the points as required this EE is terminated. If we do not, we are setting ourselves up for future problems (we are union BTW and this is the union VP).

I'm having a hard time with this one.

What do you think?

NaeNae55

It is my understanding that the courts frown on a black and white rule regarding calling in. If there is a 'reasonable' explanation, then you must waive the rule[i] in this instance[/i].

So first, you must have the employee explain why he did not call as required. If he has a reasonable excuse, you will have to allow it. Please note: reasonable is subjective. Only you can decide if it is 'reasonable' or if you should term. However, if a court considers it reasonable when you did not, you will lose a lot more than if you just accept the excuse.

Good luck!

Nae

LindaS

We spoke to the employee regarding his absence. He did not have any valid reason for failing to call in, just that he thought as long as he called in by 7:00am he was okay. This is despite numerous meetings, notices, etc. stating otherwise.

NaeNae55

Sounds like your documentation is in order. As long as you follow the same guidelines with employees who are not on FMLA, you should be fine to term.

Good luck!

Nae

davids

Although you never know what a court will do if this case ends up in court, it sounds like you have justification to terminate. Your termination notice should be clear that you are terminating for the failure to call in, not for the absence itself. However, before terminating, you want to be sure that your organization does not have a history of ignoring the call-in rule for other employees.