Under the Family and Medical Leave Act (FMLA), what do you do with someone having repeated intermittent absences where they would otherwise be incurring "occurrences" under your absence policy? In a BLR webinar titled "ADA Crackdown: How To Protect Yourself from Lawsuits as Legal Protections Expand," Ellen E. McLaughlin outlined the legal protections for employees incurring absences under the FMLA, Americans with Disabilities Act (ADA), and workers' compensation laws.
Under FMLA, employee absences due to FMLA qualifying reasons cannot count as occurrences under any attendance policy.
Under the ADA, frequent unplanned absences can make someone “not qualified” for the job. Regular predictable attendance is an essential function of the job. If someone has unplanned absences, it can make them unqualified and subject to disciplinary action, even when it is due to an ADA disability.
Under workers' compensation laws, technically you can discipline someone for absences even when they're due to a workers' compensation injury or illness, but the backdrop of the laws is the desire to get someone back to work. Disciplining or terminating an employee for absences due to a workers’ compensation injury can be risky.
Ms. Ellen E. McLaughlin is a partner in the Chicago office of Seyfarth Shaw LLP. (www.seyfarth.com) She is also a former national Chair of the Labor & Employment Law Department. She is engaged in a broad-based employment and labor relations law practice, specializing in federal and state court and administrative agency employment litigation. Ms. McLaughlin also regularly advises employers on how to avoid litigation through the use of employee education and training and effective employment policies. Ms. McLaughlin is a frequent lecturer on a wide variety of employment and labor law topics. She co-authored comments to the EEOC’s proposed regulations for the ADA as well as the ADA Amendments Act, and comments to the DOL’s proposed regulations for the FMLA on behalf of national employer coalitions. She is widely recognized as one of the nation’s foremost ADA and FMLA experts.