Termination for Points

funkysan · September 2001

For you who have a point system or occurrence system for absenteeism could you help me out? I have been told even though I have an occurrence system for absenteeism, if an employee who is pregnant and is not protected under FMLA goes out on maternity leave and that occurrence reached termination you cannot terminate. How do you handle this. If this is the case this employee would be allowed more points or occurrences than other employees.

bsa · September 2001

The point system is supposed to be very black and white so you can't discriminate. But some of our federal and state laws create some HUGE exceptions to the point system. I think that the Pregnancy Discrimation Act is one of those exceptions.

Gillian · September 2001

I don't have an attendance point system, nor would I consider one in todays work environment. There are a variety of factors which are working against those sytems, which are in decline as a way of dealing with absenteeism. The first is the one you mentioned. Assessing points for absences which are for reasons where individuals are legally entitled to time off is trouble. FMLA fits this category and is the most problematic for point systems because illness, self and family, are probably the most common reason for absence and for the assessment of points.

The other reason that point systems are problematic is that work life today is very different than the past. It is not possible to separate work life from away from work life, leading to a whole lot of very legitimate reasons for employees to be late, leave early or miss work altogether. As employers, we have to balance our legitimate need to have people at work with the employees legitimate need to take care of their business, not all of which can be accomplished in non-work hours.

The use of point systems in todays environment puts one in a position of being required, legally, to have exceptions (FMLA, etc.) and it creates a burden for employees, making the employer look unreasonable and uncaring. We have a real balancing act to work with in dealing with absence but point systems are not the way to go.

jed · September 2001

A point system is a way to avoid discrimination by treating all employees equally and eliminating the ability of individual managers to pass judgement that creates the inequality. Because there are legalities developed by the federal government does not complicate the point system at all. An exception must be respected in any system of attendance so the point system is viable.

Elizabeth · October 2001

We have a point-system policy. We do not count FMLA time as an 'occurrance'. Only 'unsubstantiated' use of Sick Leave is counted. 'Unsubstantiated' is when there is no proof of the reason for the time off (no doctor's note or note from child's school, etc.).

Gar · October 2001

It seems to me that if this employee does not have FMLA protection and she has accumulated the points needed for termination, you have no choice but to fire her. Not to do so could expose you to a gender discrimination claim. The pregnancy act should not cause a problem given that it's purpose is to assure that pregnant women aren't discriminated against. That law does not grant them immunity from employment termination for cause.

I don't like point systems either. They are out of step/date with the modern workplace, they are inflexable and force employers into decisions that may be legal but are clearly unreasonable. But, with that said, you must follow your policy.

Gillian · October 2001

Or change it - I know that you forgot to add that to your message, Gar.

Gar · October 2001

Thanks Gillian. Yes, by all means change it!!!

Theresa Gegen TX · October 2001

Before you terminate a pregnant employee for absenteeism, you need to check your state's laws. Many states give greater protection to pregnant employees than the FMLA.

Good Luck.

rexxie · October 2001

Theresa's right--check your state laws first. In Mass. they have much stronger state laws than the FMLA & I'm constantly checking them out first.

We have an occurrence process here, which also means we can exempt an employee for a disability occurrence if we so choose. We try to be very consistent but even so, we end up keeping people over these 'disabilities' even tho they are not FMLA eligible or even STD or LTD. Ultimately when we want to terminate for extensive failure to follow the work schedule, we cautiously cross our fingers because we've given them all these extra opportunities. Then it's a fight with unemployment!!

Ahhh, the joys of HR!

>Before you terminate a pregnant employee for absenteeism, you need to
>check your state's laws. Many states give greater protection to
>pregnant employees than the FMLA.
>
>Good Luck.

System · October 2001

funkysan,

Everyone has given good warnings about FMLA, Pregnancy Discrimination Act, etc. For good checklist of legal issues to consider in situations like this, you might want to check out our HR Quick List book. (Not check out like a library, but ... oh, you know what I mean.) It's a good decision-making tool with sections on "An employee is expecting or adopting a child" and "An employee has an attendance problem."
[url]http://www.hrhero.com/hrquicklist.shtml[/url]

James Sokolowski
HR Quick List co-author
M. Lee Smith Publishers

HRAMERICA · October 2001

I was just at the Ohio Civil Rights Commission and picked up their brochure information on this very matter. In the brochure it states a response in regard to the question: "How much time must my employer give me for maternity leave?"
Thw answer given:" There is no specified period of time. Ohio Rules require only that the leave time be 'sufficient.'" Accordingly, I believe that you should contact the OCRC and inquire of them in regard to this matter. It appears from this statement that the Ohio Rules trump the Company rules.

Termination for Points

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