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FMLA | Can employees be disciplined for exceeding absences?

by Amanda Pestana


Can employees be disciplined for exceeding the absence frequency on an FMLA? To answer this question, we will take a look at a recent FMLA case from 2019.


Tori, an executive assistant at an alarm monitoring company, had reactive arthritis. Due to her medical condition, she would be absent from work to attend her treatment and care for her flare-ups. Tori's doctor provided her with a signed certification stating she needed to take FMLA for two days per month to take care of her flare-ups and attend four hours of treatment, which would take place two times per month. The alarm monitoring company kept an attendance record on a point-based system in which employees were given points for unexcused absences. When an individual arrived at ten attendance points within 12 months, the employee would be terminated.


Tori's patterns of absenteeism exceeded the amount indicated by the doctor. She also missed several visits to the doctor because "her knee gave out," failed to provide timely notice for the FMLA, and was absent for reasons, not FMLA related. Tori, in later-filed FMLA lawsuit, mentioned this as an "FMLA violation." To the court, if an employee's absences "exceed what was estimated in the certification," the employer has the right to "notify the employee and give them a reasonable opportunity to cure the deficiency."


When Tori's physician recertified Tori for the same frequency and time leave as previously certificated, the court determined that the employer "lawfully denied FMLA leave for absences exceeding the amount certified (and later recertified) by her physician." Therefore, the FMLA claim was dismissed because the employer had the right to use the unexcused absences as part of the attendance point total and certified in court that she was terminated because of her "unexcused absences." | Evans v. Cooperative Response Center EMPLOYERS

When an employee's absences SIGNIFICANTLY exceed the frequency informed by the certification, the employer SHOULD recertify along with a letter explaining the pattern. If the physician does not change the frequency DESPITE having the opportunity to do so, the employer has the RIGHT to issue discipline for EXCESSIVE or UNEXCUSED absences.


Section 308 of the FMLA allows employers to recertify excessive absences AND contact the doctor regarding the pattern of absences if the employer intends to discipline the employee for absences that exceed the recommendation of the physician. Although the physician, in this case, was given the option to change his initial medical advice the first time around, he did not. Therefore, the employer had the initial certification, the letter explaining the pattern, and the recertification. The doctor affirmed his stand for Tori to miss work only two days per month because of her medical condition. EMPLOYEES

If Tori had done differently, the conclusion of the case would have ended favorably for her. If she had justified her additional absences through medical justification and had records that supported her deficiencies, she could have won the case. #work #laborlaw #fmla #employers #employees #justification #justice #business #growth #cases


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