Employee Absenteeism and the Family Leave and Disability Laws
By Randall P. Sutton
SAALFELD GRIGGS PC
One of an employer’s most frustrating management problems is the employee who is chronically late or absent. Faced with excessive absenteeism, the simple solution is to terminate the employee and hire someone who “wants to work.” Unfortunately, in employment law, nothing is simple.
Before terminating an employee, the employer must always know why the employee was absent. Even when the absenteeism problem is chronic, the employer must document the reason for every absence. As the following discussion will show, if absences are not properly documented, the employer is likely to run afoul of the family leave and disability laws.
FAMILY LEAVE LAWS
In general, the family leave laws in Oregon apply to employers with 25 or more employees. Although there are many exceptions and complexities to the law, it generally requires that the employer give an employee up to 12 weeks of unpaid leave for the “serious health condition” of the employee or the employee’s immediate family member. The law also requires time off for parental leave, certain pregnancy conditions, and to care for sick children. An employer who refuses to grant family leave to an eligible person will face substantial liability for discrimination.
Many employers consider a “serious health condition” to be something that is life-threatening. However, the court and regulatory agencies have construed this term broadly, so that even certain minor illnesses may qualify.
For example, any person who is admitted to a hospital has a “serious health condition.” Similarly, a pregnant woman who goes to the doctor for prenatal visits has a “serious health condition.” Surprisingly, a “serious health condition” could include the flu if the employee is absent for three days and visits a doctor twice for treatment. Even more surprising, the family leave laws also require that the employer grant time off when necessary to care for a child with a minor ailment.
DISABILITY DISCRIMINATION LAWS
The Americans with Disabilities Act (ADA) and state disability discrimination laws protect certain “disabled” employees. While many employers may think of a disability as a permanent impairment such as blindness or the inability to walk, the law is actually applied far more broadly. Employees with a serious incapacity that lasts for as little as 3-4 months may be considered “disabled.” Such “disabilities” could include cancer recovery, back injuries, or chronic depression. In such a case, the law may require that the employer allow the employee to be absent for a period of time as a “reasonable accommodation.”
When seeking to control absenteeism, the problem for employers is determining when an absence is protected by disability or family leave laws. If these laws protect the employee’s absence, then the employer can face discrimination charges if it counts that absence against the employee. Unfortunately, many employers do not track and document the reasons why their employees miss work. When the employer finally decides to fire an employee with an absenteeism problem, it is then impossible to recall whether the employee had any absences that would be protected under the law.
Effectively handling absenteeism issues requires that the employer understand the family leave and disability laws, and how those laws work together to limit an employer’s ability to terminate or discipline employees with attendance problems. If you are interested in learning more about these issues, our firm writes attendance, family leave and disability policies, and provides on-site training for management and supervisors.