Calling The Roll: Carefully Tracking Employee Absences Is Crucial For Employers Subject To FMLA

Family Law Attorneys Discuss Employee Absence and FMLA

Enacted by Congress in 1993, the Family and Medical Leave Act (FMLA) seeks to balance the demands of the workplace with the needs of families. It generally entitles eligible employees of covered employers to take unpaid, job-protected leave for specified family and medical reasons, with the continuation of group health insurance coverage under the same terms and conditions as if the employee had not taken leave.

For those employers that utilize employee attendance records as part of the employee’s periodic performance reviews or in making decisions to terminate an employee for excessive absences, it is crucial that the employer accurately track FMLA leave. Failure to do so can result in an FMLA lawsuit that can be expensive and challenging to defend.

FMLA: General Coverage

Under the FMLA, eligible employees are generally entitled to 12 workweeks of leave in a 12-month period for:

  • The birth of a child and care for the newborn child within one year of birth;
  • The placement with the employee of a child for adoption or foster care and to care for the newly placed child within one year of placement;
  • To care for the employee’s spouse, child, or parent who has a serious health condition;
  • To deal with issues arising out of the fact that the employee’s spouse, son, daughter, or parent is a covered military member on “covered active duty.”

Eligible employees may also be entitled to as many as 26 workweeks of leave during a 12-month period to a covered service member with a serious injury or illness if the eligible employee is the service member’s spouse, son, daughter, parent, or next of kin.  Washington also has its own FMLA law that provides even more protections for employees.

Inaccurate or Incomplete Attendance Records

Particularly where an employee has notified the employer that he or she suffers from a serious medical condition, the employer must take great care not to take any adverse employment action based upon absences or tardiness associated with that condition. For example, in one case [Wahl v. Seacoast Banking Corp., Case No. 09–81382-CIV-MARRA (S.D. Fla. Mar. 9, 2011)], an employee notified her employer that she was pregnant; she took intermittent leave associated with morning sickness and other pregnancy issues. Rather than track those absences as FMLA leave, the employer marked her absent or tardy and then used her “poor” attendance record when coming to a decision to fire her. When the woman later filed an FMLA claim in the courts, she prevailed. The court held that her absences were protected.

Likewise, where an employee takes intermittent leave to care for her children, an employer’s decision to treat her absence as “unexcused” has been held to violate the FMLA.

Carefully Examine Employment Records When Discipline is Contemplated

Prudent employers carefully analyze the records associated with their absenteeism policies. They search for weak points in how they track FMLA leave, and they revise their procedures when necessary. The employer’s HR team should carefully examine every absence that the employer seeks to use against the employee to make certain that the absence did not qualify for FMLA protection. Once the employee has given the employee enough information to put the employer on notice that the time off might qualify for FMLA leave, the burden shifts, and the employer’s FMLA obligations are triggered.

Bolan Law Group. – Experienced Business Attorneys

For more than 30 years now, Bolan Law Group. has provided businesses with quality legal services throughout the Pacific Northwest. Our experienced business lawyers understand both state and federal rules and regulations related to employment. We can assist any business in determining whether its protocols are consistent with important laws such as the FMLA. We pride ourselves on designing the simplest, most effective solution for your legal issue. We also have the experience and skill to represent your interests aggressively in court. For assistance with any business law issue, contact us on the web, or call our office at (253) 470-2356.

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