Sick Leave Abuse

EE seems to be sick on Thursdays, Fridays and Mondays. She does have sick time to cover these days off so they are not considered "unexcused time". Our hand book states 2 or more unexcused absences may lead to dismissal.

This ee misses too much work. It's either, FMLA, Workers Comp, a car wreck, staph infections or just I don't want to be here today. How can you term someone like this. It's always something and it doesn't take much to get a doctor to complete the FMLA paperwork. She knows how to work the system.

She had a staph infection, just so happened it was on a holiday week. She had a minor car wreck, just so happened it was the week before her vacation, so along with her weeks vacation, she got a doctor to complete FMLA papers on her car wreck, claiming a shoulder injury and she could not work, extending her vacation to 2 weeks.

I was requiring that on FMLA it was mandatory that you use accrued time in conjuction with the 12 week leave. I have since changed the policy because I sat in on an audio conference that said I shouldn't mandate that because later if they missed work and had no accrued time and I termed them because of unexcused absence, that would be a potential hazard for me.

In other words, I can't punish an ee for missing work if I require they use accrued time in conjuction with FMLA?

Any advice?



  • 4 Comments sorted by Votes Date Added
  • T,
    We have a lucrative PTO plan at our company, so almost everyone has a substantial amount of accrued PTO they can use for sick time, etc. We keep situations like you describe under control by distinguishing between "scheduled" and "unscheduled" time off. If an employee does not schedule their time off 48 hours in advance, it is considered "unscheduled" and will be counted toward disciplinary action. Each unscheduled absence equal 1 point, and after a certain number of points, disciplinary action starts. We still require employees to use accrued PTO during FMLA leave. I believe the advice you received in this area is flawed...unless what they meant to say is that you can't terminate an FMLA eligible employee just because they are out of sick time. I agree with that.
  • That was not the best advice you got in the audio conference. Any employer who is not precluded from doing so by state law should run leave concurrently with FMLA. If you later term someone for absences not covered by leave, there is no FMLA implication to that. I don't have a clue what your attendance policy is, but work it strategically and by the letter of the policy. She'll trip up and self destruct sooner or later unless you have lax enforcement or a weak policy.
  • Agree with both previous posts regarding running FMLA along with any paid time off. The only issue would be if an EE was termed due to attendance, it is more likely they will receive UI benefits. We currently do NOT run our FMLA and vacation, etc. together but plan to start as of January 1. It is a nightmare having EEs use FMLA THEN have 4-5 weeks vacation!!!

    As for the excused vs. unexcused, I like AZHR's take on the use of the time. Just because a person has time off available does NOT mean that they alone can dictate how/when it is used without any implications.
  • For non-FMLA leave, you could change your policy to address unacceptable patterns of absences, even if the ee has leave time. It's in our sample policies in the Subscribers Area of this website.

    For FMLA, you can get a second opinion, and show the doc her previous pattern of absences to, uh, help with the diagnosis. x}>

    James Sokolowski
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