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QUESTION: HI. We have an employee since 8/2012 who has had 19 absences and 17 tardies within 100 scheduled work days. Most of these are no shows, or calls day of, leaving the rest of the team short handed.  She's operated "under the radar" by "no showing" only 2 out of the 3 days that lead to automatic termination per our company policy.  Out of 12 employees, she is the only one "getting away" with this and we need it to stop.  Because there are new hints of her mental instability and finally documentation yesterday from her mental health doctor stating she could not work the last 6 days (she called in absences most of those days with promises of showing up the next day and didn't) and she's indicated she's reacting to medication, where do I stand as an employer? We care about her well being, we don't want to cause her more mental "breakdown" issues yet, we are left in a lurch of being afraid of letting her go.  I do not ask for more details about her personal life so as not to be accused of discrimination yet her life is an open book amongst the staff causing more disruption. What can I do to protect her well being but protect our legal obligations? Thanks from California.

ANSWER: This is certainly a tough situation for a small business to deal with. You mentioned that there are 12 employees; is this the entire employee population of your company?  If so, then you are not covered by the family leave laws (FMLA at the federal level and CFRA, the California Family Rights Act), both of which require a minimum of 50 employees for coverage.  Thus you would not be legally required to give her leave or to treat leave time as "protected", meaning no disciplinary action can come from it.  However, you could voluntarily establish an unpaid leave program similar to FMLA and CFRA if your are not covered by those laws, which could give employees such as this one some flexibility in dealing with health problems, but still place a limit on absences to protect your company's productivity.

Also, if your company has 15 or more employees, you would be covered by the Americans With Disabilities Act, which prohibits discrimination against persons with a covered disability on the basis of their disability.  While being at work is generally considered an essential function of any job, the EEOC, which enforces the ADA, as well as the California Department of Fair Employment and Housing have both recently begun to assert that a 'reasonable accommodation' under the ADA can include time off from work.

Putting the laws aside for a moment, what I see here is a very difficult business decision on how to balance your employees' welfare with your business need for productivity and a generally peaceful workplace.  You have something of an advantage over larger employers if you're not covered by FMLA/CFRA, but at the same time, smaller businesses are hit harder by excessive absenteeism than larger ones.  I do think you need to sit down with this employee and see if you can impress upon her your need that she be at work when scheduled, while still taking proper care of herself.  I believe you will have to decide what the limits of your tolerance of absences are, and give her fair notice that you can't continue much longer with the current pattern.  If you treat her fairly and she continues to abuse your patience, you may have to let her go.

All that said, my best advice is for you to get in touch with an experienced employment lawyer who specializes in representing employers, to help you decide what is best for your company and your employees in situations such as this.  If you don't know an attorney, the local Bar Association where you work will almost certainly have a referral service you can utilize to get in touch with someone who can advise you.  Just search online for "bar association referral" and you will find the right web sites.

Feel free to send a follow-up question if you would like to get into more details about anything I've said here.  I hope you find this helpful.










---------- FOLLOW-UP ----------

QUESTION: I appreciate your reply - I am a hard worker and so are all the employees here which is why it is so difficult.  I just sent the following email, THEN realized I should have checked for your reply first.  What are your thoughts on this email? I figure I can cut her pay if she still continues to decline and maybe she'll decide it isn't worth coming to.  There is a high demand for her specialty and already about 20 craigslist ads today. Hopefully encouraging to her. I am left shorthanded with hard to find repalcement however. And yes, we've talked with her firmly but courteously.  Yes, I'll look up an attorney too.  Really appreciate it - is this legally ok - I hope since I just sent it:

Dear XXXXX,

We received your message about your absences again.

Although we try to maintain some flexibilty in your schedule, we need to be able to rely on you to show up as scheduled for your team. Your most recent absence was your 19th time being absent, plus some no-shows without any calls/emails, and not including the prior approval for special personal leave of which new employees don't usually get. This is a reminder that your probationary period was extended. You are At-Will and still on probationary and not regarded as a regularly employee and you have no employee benefits are accumulating.

In addition, out of 100 scheduled work days thusfar, you were absent x 19 days calling in sick, returning without medical documentation, (this doesn't include the 2 days we excused you to take your trip to Las Vegas), late (arrivals after 9:05, when you are supposed to arrive at 8:50 am) x 17 days, and left early without permission at least twice. We did finally receive ONE note from your doctor yesterday via fax. There are many days where you are absent and say you will be in the following day of which ends in NO SHOW when expected. This creates a dangerous backlog in your critical role for patient care that takes at least four times the amount of time and energy to make up for the lost time by your team mates. Additionally, you've showed up late for work, and left immediately for coffee as well as leaving your team during some critical busy times where they needed your help. This showing up and leaving for coffee improved in November, so thank you for your efforts.

Furthermore, we've already had at least 4 verbal warnings/discussions about better team work, improving reliablity, accuracy in the details needed for your job title, and follow through on each project. Most importantly out of this building list of concerns, is that you still continue to have other people follow through on things you should complete. There are basic billing questions that come up of which you cannot answer but should have been able to. Patients are witnessing this, and leaving either angry from not being helped to our standards of customer service, or confused as to what is happening.

Although we care about you as a person and about your well being, this is unacceptable work ethics and lacks the necessary contribution to the team we are trying to keep happy and productive. The practice runs on core values to provide quality patient care. The patients trust us with very important confidential information. Your contribution to the team fluctuates dramatically unpredictably, which then affects our patient care abilities.

Because we believe that you can be a better contributing member to our team, we will allow another opportunity to show your team you can do your job. This means arrive on time, your scheduled days of work will be Mondays and Tuesdays (arrive 8:50, 1 hour lunch max starting BEFORE 12:30 PM, stay until closing approximately 6pm) beginning immediately.  Your priority will remain as careful detailed medical and vision billing, EOPs, chart prep, pretesting, and assisting your team when asked, in the order of prioirty listed here. You may have the opportunity to re-earn more scheduled days if you can cooperate productively for your team and handle these two days.

You are NOT scheduled to work this Saturday 1/12/13 or the next one until further notice.

You will be expected to report your weekly statistics on time and accurately as well as keep an ongoing log of what you accomplish each work day.

We sincerely hope you are well and look forward to your full participation at your return on Monday 1/14/2013.  Please take good care of yourself.

Answer
My apology for the delay in answering your follow up.  I think this message is appropriate and does not open you up to any valid claim from the employee.  It is essentially what I would advise any client to send in similar circumstances-- a recital of the issues you've had, and how you as the employer have responded, without any hyperbole or gratuitous criticism, along with a clear and simple expression of what your expectations are in the future.  

I hope she responds as conscientiously as you are treating her.  

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Frank C. Magill

Expertise

I can answer questions about any U.S. labor or employment law question. I cannot answer questions about non-US law. I am not a specialist in employee benefit law (ERISA and HIPAA) or Workers' Compensation law, but will do my best to point questioners toward good resources availabe online. Expertise includes, without limitation, EEO/Affirmative Action/Employment discrimination (Title VII, Age Discrimination in Employment Act, Americans With Disabilities Act, GINA, Fair Credit Reporting Act as applied to employment); Fair Labor Standards Act; Texas labor code; Family Medical Leave Act; employee compensation; discipline and dismissal; force reductions, severance pay programs and administration; collective bargaining, union representation, grievances and arbitration, National Labor Relations Act and National Labor Relations Board; employee handbooks; staffing; dispute resolution outside of traditional labor agreements; employee communications; employment policies and compliance programs; codes of ethics; employment or labor litigation.

Experience

30+ years experience as corporate counsel for a Fortune 100 telecom company, specializing in labor and employment law issues. In addition to providing day-to-day advice to my company's internal HR leadership and staff, I've represented the company in numerous labor arbitration cases and at the bargaining table.

Organizations
Texas, Illinois and Missouri state bars

Education/Credentials
J.D. 1979, Harvard Law School. B.A., Summa Cum Laude, 1976, Illinois Wesleyan University.

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