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When employees are absent longer than FMLA allows

When employees are granted leave according to the Family and Medical Leave Act (FMLA), they are allowed a certain number of intermittent absences. Usually, employees return to work after they have used up these absences. In some cases, though, an employee's leave will exceed the absences allotted by FMLA.

When this happens, employers are often left wondering how to deal with the employee. Reprimanding an employee who has invoked FMLA can be tricky. Employers must strike a balance between addressing the issue with the employee without violating the employee's FMLA-protected rights.

Questioning the absences of an employee must be done with caution and tact. Employers have a few options in a situation like this:

  • First, employers should carefully document the employee's absences and look for a pattern of misuse. It is crucial that the employee's supervisor, the employer and the HR department have sufficient evidence before leveling any accusations. 
  • An employer may want to seek recertification of the employee's FMLA status. If the worker's absences are not recertified, it provides evidence that the employee took unnecessary absences. Employers may only recertify FMLA every 30 days, but it is sometimes necessary when examining an employee's use of leave.
  • In some cases, it may be necessary and justified to discipline an employee for being absent longer than FMLA allows. This could depend on whether the employee's doctor recertified their number of absences. But if the employee has continued to take excessive absences, then the employer may be justified in pursuing discipline.

FMLA, absences and lawsuits

It is not unheard of for employees to sue their employers for violating FMLA regulations, even if the employer was completely justified. This can spark a lengthy, frustrating legal nightmare. But by keeping good accurate records and being consistent in the application of disicpline, employers can hold employees accountable for their unnecessary FMLA absences.

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