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Human Resources/Termination Based on Attendance


QUESTION: Ms. McAllister,

We are a 20 employee private, non-profit organization in New Jersey. We hired a new employee in the beginning of January.  They called out sick 10 days within the 90 probationary period.  Following the probationary period, they were given a written review, which documented that they had to improve their attendance over the next 2 months.  Since that review (done at the end of April) they have called out sick 3 more days, and now, in the most recent incident, have been out sick 9 days in a row (and are still out).  Although a doctor's note was not provided for previous absences, the individual was told that they must provide one for this current, more extended incident.  

Our employees get 10 sick days a year.  New hires get 1 sick day each month during the 3 month probationary period, then get the remaining 7 for the total of 10.  

Based on these absences, we do not feel that this individual is dependable.  With such a small staff, these excessive absences have created resource issues.  Can this individual be legally terminated based on attendance if all of the absences are due to sickness?

Thank you for taking the time to answer this question.

ANSWER: You are fewer that 50 employees so you do not have to provide Family medical leave and you can terminate an employee for poor attendance. You just need to have the poor attendance documented.


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

QUESTION: Thanks you for your response.  It actually prompted another question about FMLA.

Does an employer in New Jersey with less than 50 employees have the option to offer FMLA under the federal and New Jersey acts, or are we excluded from the acts because of our size?  If we are excluded, what options, if any, do we have for offering this type of leave?

Employers with less than 50 are excluded from the FMLA Act, however, if the company wishes to offer it they will be in no violation of law by doing so. If it is offered it must be consistent with all employees.


I might add the reason those under 50 are excluded from FMLA is because it could cause problems with staffing. If two people are out on FMLA and a 3rd person wants to use FMLA. If one person is allowed to use FMLA than all must be allowed if qualified. This could be a hardship on a small company which is why it is excluded.


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Shirley McAllister, CPP, PHR


I can answer questions pertaining to Compensation, Health Benefits, Retirement Plans, Payroll,Payroll taxes, Employee selection, Employee Termination, Training, and Employee Incentives. I have offices in U.S., Canada, UK, South Africa,Australia and NZ. I am most confident in the U.S. and Canadian but have knowledge of the internationals. I do not have extensive knowledge of South Africa, Australia and New Zealand. I do have some Human Resource Knowledge in those areas. Please do not ask me homework questions, I do not have time to answer them.


I currently hold both the U.S. and Canadian Payroll Certifications. I currently hold the SHRM PHR certification. I have worked in the Human Resources area with high emphasis on compensation and benefits for 25 years at the same company. My company is an international company and I work with our International offices whenever there is a Human Resource area needing addressed. I volunteer on the American Payroll Association hotline and have for the last 10 years or so. I answer many questions each week for other payroll and HR professionals, mostly on taxes, benefits and compensation issues. I have been the trustee for our 401K plan for Retirement benefits and our 125 Cafeteria Plan for Health Insurance benefits.

SHRM, National APA, National DOLEA, State National Mentoring Network I.O.M.A. Advisory Board


Boise State University Human Resource Certificate Program PHR through SHRM CPP through American Payroll Association Payroll Administrator and Payroll Supervisor certification through Canadian Payroll Association Published writer of Payroll and Benefit articles in a payroll Publication 25 years experience in an International Company

Awards and Honors
Citation of Merit 8 years in a row for hotline service for A.P.A. Honor Award for child mentoring service through RSVP and National Mentoring A "Pat on the Back" award for outstanding leadership as a Youth Group Leader by "The Salvation Army." Runner up for Employee of the Year at my Company twice and Employee of the month 4 times.

Past/Present Clients
I used to answer questions on when they had a similar quesition and answer section. I volunteer for APA hotline I also belong to several HR forums when I often answer questions

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