Problem with excessive absences
I need guidance regarding this situation, and hope someone can help.
Employee (I'll call him Joe) works in New York City. He is a non-exempt employee (building maintenance/handyman). His supervisor (I'll call her Sue) called me today to ask advice on what to do about his excessive absences.
Joe's reason for his recent rash of absences is health-related; he has a problem which causes him to wake up a lot at night, so he sometimes calls in sick because he "hasn't slept all night". He also misses work to go to doctor's appts. Just since March 1, 2007, he has called in sick 10 times (for a total of 12 days). He has used up all of his paid sick time for 2007, and almost all of his paid vacation time (he has asked to use paid vacation time in lieu of taking time off without pay, since he has no more paid sick time left).
He is not eligible for FMLA, because he does not work in a location within 75 miles of which at least 50 people are employed by us. However, I don't know if there are any New York State- or NY City-specific laws which would apply, as I work at our Headquarters in California and am not as familiar as I ought to be with NY law. I've tried looking this up on hr.blr.com, and I'm not coming up with the answers I need. (Also, we are a non-profit church, so there is a chance that some laws which normally apply to most employers might not apply to us. I don't expect anyone out there to know about that, but I mention it just in case the happens to be someone who actually does know about church-employer exemptions.)
I don't know if the health problem he is experiencing would qualify as a disability under ADA. (How are you supposed to figure that out if you aren't supposed to ask him questions about his PHI ?! Argh!)
Sue feels that his attendance improves for a while after she speaks to him about it, but after a while, the pattern returns. I do not see a pattern on Mondays or Fridays. She doesn't want to find a way to fire him or anything like that, but she needs to know what she can do to make sure that she can rely on him to show up and work. Before I advise her, I want to make sure that I know what the law allows/requires...
Not sure if this is helpful or revealing, but here is his recent record:
March: 1 day
April: 1 day
May: 1 day
June: 1 day
July: 2 times, 1 day each
Aug: 4 times (two 2-day absences, and two 1-day absences) total of 6 days
Sept: no absences
Oct: 1 day
Nov: 1 day thus far