Abusing sick leave policy

We are a small non-profit organization of 20 employees (FMLA would not apply). We have a probationary employee who has missed 21 days (most are taken one day at a time) due to sickness. Because of her sickness our policy does allow this time off. She has not been calling in her absences within the alotted time, frame per policy. This has not been discussed with her as of yet.

Her performance is suffering because she is not here to do the work. We would like to terminate due to performance and we are an at-will state. What risks do we take in terminating this probationary employee?


  • 7 Comments sorted by Votes Date Added
  • >This has not been discussed
    >with her as of yet.

    Missing 21 days during the probationary period?
    It hasn't been discussed?

  • Missing 21 days has been discussed with her as excessive about of time off work. What has not been discussed is her not calling in her absences within 1 hour prior to the start of her shift.
  • There are always risks when terminating an employee BUT at-will means you can terminate the employer-employee relationship at any time, for any reasons EXCEPT a discriminatory one. If you have allowed other "probationary employees" 21+ days of sick-time and didn't require them to call in, then you MAY have a problem but from my seat with a limited view, the situation looks clear to me to terminate becaues of poor performance.

    However I think you might want to review your sick-time policy. It seems incredibly generous, especially if you are allowing "probationary employees" this great perk and it leaves you exposed to incredible abuse and possible future problems.

    Wish you luck...
  • An employer can always terminate - but only you can answer what kind of risks you are willing to tolerate.

    I don't know of any termination that comes without risk(s), but if you have treated her in a manner consistent with that of other EEs, and have followed your policies with respect to disicpline (such as a progressive discipline approach), then you are reducing or mitigating risks.

    If there are no other issues, such as retaliation for whistleblowing, illegal harassment, hostile work environment or Title VII discrimination issues, then you are on pretty solid ground, in my opinion.
  • As marc said, there are always risks with termination. I agree that you have a legitimate reason in terminating for performance. If you feel you need another justification, I would immediately issue her a disciplinary notice regarding not following proper call-in procedures, then follow your own progressive discipline policy.

    Good luck!
  • She is not abusing the policy if your sick leave allows her the time off. It may be a NC/NS issue, I don't know what your policy on that is.

    You go on to say she is underperforming while out on approved sick leave. Well that's pretty much a given.

    You may have something with NC/NS, but otherwise you are punishing her for your company's bad sick leave policy.
  • <<<<What risks do we take in terminating this probationary employee?>>>> The last two words of this sentence lead me to believe you are very safe in terminating, pending specific language in your Personnel Policies and Procedures Manual.
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