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FMLA and your attendance policy

When an employee is not at work, there can be project delays and other workers often need to step in to cover for that person. Intermittent absences typically cause little or no disruption in the workplace. However, when an employee is excessively absent, actions like termination may be appropriate.

Before you take such actions against an employee, though, you will want to be certain that the excessive absences do not include certain types of leave.

FMLA and ADA leave

As this article explains, certain types of leave are protected. This means that an employee can utilize the leave benefits without fear of losing their job or being punished by an employer. Leave under the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) are two such types of leave.

If an employee's absences are covered under FMLA or ADA, then employers would be wise to proceed with caution if they wish to terminate a worker for excessive absences. Employers should carefully and diligently record the covered hours and days an employee was out on FMLA or ADA leave, and then leave those hours out of the calculation of an employee's absences.

Other types of authorized absences

In addition to leaving absences covered by FMLA and ADA out of the calculation of absences, employers will also want to exclude absences stemming from jury or military duty. And with the upcoming mid-term elections, remember that Texas employers must allow employees to take time off to vote on election day.

Missed work due to these absences should not count toward overall absences for the purposes of enforcing an attendance policy.

Know your options as an employer

Employers must account for any work affected by an employee's absence. When absences are excessive, employers must consider their options of releasing an employee to hire someone else. However, making that decision confidently can be difficult when the reason for some of the absences include those discussed in this post. 

In these situations, consulting an attorney before making any decisions can be wise. With legal guidance, it can be easier to avoid costly missteps that could lead to employee rights' violations and legal claims.

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