In California, there are always cases of employees who are always absent from the workplace for no apparent reason. Even when they receive warning letters from their employers, these employees hardly rectify their behavior.

Even worse, some of these employees hardly report to work on time on the few occasions they avail themselves. In some cases, some employees miss work due to genuine reasons such as sickness arising from serious medical conditions-mental illness, cancer and diabetes.

In most instances, employers in California are usually at loss with respect to how to hand medical leave or termination of employees for missing work. To respond accordingly to these issues, let us look at some common questions mostly asked by employers.

FAQs (Frequently Asked Questions)

1. Is it mandatory to provide paid sick leave to my employees?

Paid sick leave largely depends on the location. There are places in which employers are supposed to offer their employees paid sick leave while in other places it is not a mandatory.

2. Are my employees entitled to medical leave under the Family and Medical Leave Act (FMLA) if my organization has less than 50 employees?

No. The Family and Medical Leave Act is only applicable to a business that has 50 or more regular employees. Further, the medical leave is applicable if the employees work within 75 miles of each other.

3. What should I expect as an employer from an employee request for FMLA leave?

According to the FMLA, if possible, an employee ought to furnish an employer with a 30 days’ notice prior to taking the leave.

4. As an employer can I terminate an employee on FMLA leave without the risk of legal consequences?

Yes, as an employer you can terminate an employee on FMLA leave without the risking any legal consequences. However, the termination ought to be non-discriminatory in nature. Further, an employer cannot terminate an employee as retaliation for taking FMLA leave. The following are circumstances under which an employer can terminate an employee while on FMLA leave

• Termination due to low-quality performance
• Termination due to decreased workload
• Termination due to gross misconduct, or criminal and fraud-related activities while on leave

5. When does the American with Disabilities Act (ADA) apply to a business?

This law is applicable to businesses that have 15 or more employees. The act requires employers to refrain from discriminatory behavior that intimidates employees with disability.

In conclusion, there are so many disputes that can arise between employers and employees. This is due to issues to do with habitually absent employees, medical leave, and termination. To competently handle these issues, employers should formulate precise guidelines that govern the process to be followed by employees when taking medical leave.

On matters termination, employers should involve qualified lawyers to ensure they do not break any law. As for employees, they should seek legal counsel as well in the event that the termination while on medical leave is deemed unfair or a retaliatory measure by the employee.

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If you have an employee who is always late to work or absent, then you must be really worried. You must be thinking how to discipline him or if it is possible to fire him. However, before taking any drastic step, you should be aware of the various rules and laws in this situation.

The FMLA

Otherwise, you may land up in legal trouble later on. The first thing which you should do is find out whether FMLA applies or not. As per this Act, you are supposed to give ” intermittent leave” to an employee is he is suffering from a serious medical condition. Some examples of serious medical conditions are cancer or diabetes.

In cases where FMLA is applicable, then the employee is allowed to 12 weeks of leave in a year. It will be illegal to fire him. However, the good thing about FMLA is that you don’t have to pay the employee during the leave period.

Providing Proof

You can require the employee to provide the necessary medical certificates and give a notice in advance if they know of an upcoming medical absence (such as a scheduled surgery.) In case the illness is affecting the ability to work, then you will have to transfer him to a position per his capabilities. However, the pay has to be the same.

The ADA

You also have to worry about the ADA. As per the ADA, you are expected to accommodate an employee if he is able to perform the basic functions even if there is a disability. However, the definition of ” Disability” given by ADA is very vague.

If your employee is neither protected by the FMLA or ADA, then you have every right to fire him provided there are no other state restrictions. One way to avoid such a situation from happening is to have a policy regarding this.

Employee Handbooks

When any new employee joins, you should provide him with an employee handbook which covers all the important topics like leave, FMLA, and ADA. You should also make the employee acknowledge the receipt of the handbook.

Another thing which you should do is provide a detailed job description for every position which you hire for. Also, make sure that you keep a track of the attendance records of all the employees so that you can protect yourself in case there is a case against you.

In order to reduce the risk further, you can also take an insurance regarding this. And in case you need legal assistance, you can contact a labor attorney. They will be able to help you out in these tough situations.

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Would you like to know how to deal with habitually absent, tardy, and sick employees? An employee may not be coming to work because he/she claims to be sick – others may be habitually coming late. If you want to fire such people, is there a risk?

Let us find out.

What Should I Do?

First, determine whether there are federal or state statutes that apply to the scenario. Then check if your employee has worked for at least a year at your organization and if he/she meets the minimum required working hours. After that, check if FMLA (Family and Medical Leave Act) is covering your employee.

If so, he/she is entitled to unpaid leave of up to 12 weeks per year. You can choose not to pay any employee on FMLA leave. In addition, you may tell the employee to notice you early as well as provide certification of their health condition. Although you cannot discipline such an employee, you can transfer him/her to another position with at least the same benefits and pay as the current position. Next, determine if ADA is protecting your employee (Americans with Disabilities Act).

The act requires you to accommodate employees with disabilities provided they can fulfill the essential functions of the job. ADA only protects those suffering from something very serious in order to qualify as a disability. Either ADA or FMLA does not say you can tolerate unending absenteeism.

If your employee, with no disability, has exhausted his/her FMLA leave, you can opt to fire or discipline him/her. Nonetheless, before you do anything, consider having an expert opinion on state laws from labor laws and an employment lawyer.

Should I Make An Employee Handbook?

In order to handle such cases with ease, consider including such policies in your employee handbooks. In the handbook, you can include all the above topics and ensure all the employees acknowledge receiving it.

Then make sure you enforce those policies equally across the board to avoid any misplaced claims. One of the simplest ways to alleviate such a problem would involve defining each job description as clearly as possible including the essential job functions. If the policies differ from one job category to another, enforce uniformly per category.

Nevertheless, when there are no such attendance policies, you can introduce them by noticing all the employees. Having detailed and accurate records can also protect you from discrimination claims.

Keeping Records

When an employee is absent, record when, why and any disciplinary actions taken if any. You can use those records to fight any claims that may come after terminating an employee. As always, you can contact an attorney if you are facing that situation. He/she may help you handle risks of liability, make appropriate attendance policies and answer difficult questions you have.

In addition, you can ensure your business activities like hiring, disciplining and firing employees. Better you spend little now instead of later paying more.

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