Cold and flu season is in full swing. But what can you do when you suspect an employee is abusing your sick leave policy?

Q: We have an employee who constantly takes time off for doctor appointments, reports in sick, and leaves early. These absences are very detrimental to our office, but we are concerned that it may be protected by the FMLA or the ADA. Can we sanction him for what we consider excessive absenteeism?

A: As a general rule of thumb, if an employee’s absences exceed your stated policy (for example, the employee has taken more paid days off than your policy provides), you may be able to take whatever disciplinary action you deem appropriate. But before you take any action, you should consider whether you have any obligations under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA).

Most employers define excessive absenteeism as absences in excess of what the policy allows (free attendance and punctuality policy). Therefore, authorized absences that are taken in accordance with your absence and leave policies are not considered excessive. Therefore, if the employee’s absences are covered by your paid time off policies, you must allow them. Note, however, that simply because an employee has a doctor’s note to excuse an absence, they may still consider the absence to be excessive if the employee has used all of the days allowed by your policies.

However, you may need to ignore required absences for reasons covered by the FMLA and the ADA when determining whether an absence is excessive and discipline is required. Both the FMLA and the ADA limit your right to discipline or termination for truancy. However, coverage under these laws is not automatic and you must analyze each situation on its own merits.

The FMLA requires covered employers (those with 50 or more employees and all public agencies and schools) to provide eligible employees with up to 12 weeks of unpaid work-protected leave in any 12-month period, for certain medical and family reasons . Also, you cannot discriminate against employees who are absent from the FMLA. As a result, you cannot account for an employee’s FMLA covered leave under “no fault” attendance policies or consider “excessive” absences under your absenteeism policy.

Similarly, the ADA, which applies to employers with 15 or more employees, requires covered employers to provide reasonable accommodations to qualified individuals with disabilities, unless doing so would impose undue hardship. Reasonable accommodations may include part-time or modified work schedules, as well as unpaid leave. The ADA, in effect, requires that these be considered “excused” absences or, in the case of no-fault attendance policies, not counted in determining whether discipline is appropriate. In addition, you may need to accommodate disabled employees by allowing them to take more unpaid leave than is provided in your leave policy, unless this places an undue hardship on the operation of the business.

So, in short, you have the right to discipline employees who abuse your sick leave policies, but first you need to check if your options are limited by the FMLA and the ADA.

Learn more: http://www.ppspublishers.com/articles/sick-leave-abuse.htm