If an employee has been absent for several weeks, and applied for FMLA but had it denied, can they be held accountable to the attendance policy in place for the time missed?
Employee has been out for several weeks due to an illness of his girlfriend's daughter. He has exhausted his sick time and applied for FMLA. His FMLA has been denied. There is a company attendance policy in place which he has signed and acknowledged. If he comes back to work, are the days he has missed applied in accordance with the policy?
1 answer | asked Mar 7, 2019 4:01 PM [EST] | applies to New Mexico
Answers (1)
The FMLA prevents employers from treating an FMLA qualifying absence as a violation of the employer's attendance policy.
In the case you describe, the employee's absence was not covered by the FMLA. Therefore, the FMLA does not apply and the employer is within its rights to apply its normal disciplinary policies. In other words, the FMLA does not prevent discipline for an absence that the FMLA does not cover.
The risk this employer would run is if the absence is in fact covered by the FMLA. Under the FMLA, either the absence is covered or it is not. The employee's good faith belief that the absence is covered, or the employer's good faith belief that it is not, do not change whether it is, in fact, covered. Therefore, this employer should consult its employment lawyer to make sure that this employee's absence was not covered by the FMLA.
posted by Neil Klingshirn | Mar 8, 2019 07:43 AM [EST]
In the case you describe, the employee's absence was not covered by the FMLA. Therefore, the FMLA does not apply and the employer is within its rights to apply its normal disciplinary policies. In other words, the FMLA does not prevent discipline for an absence that the FMLA does not cover.
The risk this employer would run is if the absence is in fact covered by the FMLA. Under the FMLA, either the absence is covered or it is not. The employee's good faith belief that the absence is covered, or the employer's good faith belief that it is not, do not change whether it is, in fact, covered. Therefore, this employer should consult its employment lawyer to make sure that this employee's absence was not covered by the FMLA.
posted by Neil Klingshirn | Mar 8, 2019 07:43 AM [EST]
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