Attendence Related Termination

Becky_ripley · November 2003

We have an employee who we had let go several months ago due to excessive absenteeism, mostly caused by asthma conditions (within 1 year 40+ days). She had indicated that she was going to not work, and then filed for unemployment. She was an excellent employee so when we found out she was able to work we contacted her and offered her employment with the understanding that her absenteeism could not go over her allowed time per year. She assured us this would be no problem and accepted the position. She would have been granted unemployment even though we had given her several verbal and several written warnings.

She has now been in our employ for approx. 60 days and has missed 5 scheduled workdays, on a part-time schedule. Our question is if we let her go now, with or without written warnings, will she yet again be eligible for unemployment benefits? Please advise. Thanks!

deniseE · November 2003

This will likely depend on your attendance policy...what is in writing???? Did you offer her a written contract or was this a verbal understanding??

If she is such a good employee...she has to realize that there is a problem.....

mrsbowden · November 2003

I could be totally off, but is this an ADA issue? I am not sure?

Becky_ripley · November 2003

Forgive me - I'm still new here, just under 7 months.

Reading word-for-word our attendance policy in our procedures manual it appears we do not have a concrete action written. It does indicate "Poor attendance and excessive tardiness are disruptive. Either may lead to disciplinary action, up to and including termination of employment." If I'm correct it would appear this does not give us a firm foot to stand on...???

Don D · November 2003

[font size="1" color="#FF0000"]LAST EDITED ON 11-19-03 AT 03:41PM (CST)[/font][br][br]Several points: First, asthma meets the definition of a serious health condition as defined under FMLA and her absences could have well been coverable under intermittent leave scheduling. Secondly, if you terminate an individual for illnesses, in this state, typically they will draw UI since it will be ruled that it was beyond their control, regardless of your absence policy. Caution is needed when contemplating writing people up for illness attributable to illness, especially those covered by FMLA, but not limited to them.

Lastly, no employer can assure an employee/ex-employee that he/she will or will not draw unemployment insurance. Nor will any agreement like the one you reached with her prior to rehire have any affect at all on her eligibility.

Becky_ripley · November 2003

Thank you for your response. And I can say that from reading other notes you have posted you seem very knowledgeable.

We are a small company, and therefore not governed by the FMLA. It would appear that she will get the UI whether we are capable of proving "just cause" or not. We have no problem employing someone with a health problem, but when that individual cannot report to work on a regular basis that we do have a problem with.

I appreciate your help!

Thanks

TN HR · November 2003

ICK! In the interest of both parties, whether governed by FMLA/ADA (minimum 50 and 15 employees, respectively) or not, isn't there a way to perhaps negotiate certain terms of her employment? It sounds like this may be a good employee who perhaps can make a significant contribution if both parties sit down and work on defining some parameters. Perhaps you can involve her physician in the process.

Otherwise, you'd be hard pressed to prove just cause especially when the reason for her termination was caused by a medical condition. She will most likely be allowed to draw UI. Best case scenario would be you asking for a non-charge to your account and it being granted, but it's highly unlikely that the administrative referee weenies will rule in your favor.

Gene

pecohr · November 2003

You brought this ee back knowing that she had a health related issue that caused her to miss work. My feelings are that you even though you are not bound by FMLA you should consider affording her this protection (if you did do this you would also have to do it for others so consider carefully). You've stated she's a good ee. I know others will disagree with this because of the precedent it sets but sounds like the "right thing" to do.

IMHO

Attendence Related Termination

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