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Are Absences Assumed to be Due to a Serious Condition

July 16, 1999
Related Topics: Employee Leave, Wrongful Discharge, Featured Article
Issue: You have a written policy prohibiting excessive absenteeism. You have not defined excessive in writing, but it has historically been determined by considering the total absences relative to company norms and the disruptive effect of those absences. With this in mind, you discharge an employee who has been absent from work without being excused on 72 occasions. He claims that his absences were due to his serious health conditions, hyperthyroidism and depression. However, with only a few exceptions, he has not shown that his unexcused absences were due to his alleged disability or serious health conditions. You know that the Family and Medical Leave Act (FMLA) provides protection for employees with serious health conditions. Did you violate the FMLA by discharging the employee?

Answer: No. If the vast majority of the employee’s 72 absences were not for medical reasons and if most of those that had a stated medical reason were not related to his claimed serious health conditions, then you did not violate the FMLA by discharging the employee due to excessive absenteeism. An employee cannot claim protection from the FMLA for disciplinary action by an employer as a result of absences that are not attributable to his serious health condition.

What should you know?

  1. The FMLA entitles eligible employees to 12 weeks of leave every year if they have a serious health condition that makes them unable to perform the function of their jobs. The term serious health condition means an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a health care provider. In this instance, leave may be taken intermittently.
  2. If the need for leave is foreseeable based on planned medical treatment, the employee is required to provide you with not less than 30 days notice, or such notice as is practicable. In this case, notice only needs to be given one time, but the employee is required to inform you as soon as practicable if dates were initially unknown. "As soon as practicable" means as soon as possible and practical, taking into account all the facts and circumstances in the individual case.
  3. An employee is required to provide at least verbal notice sufficient to make you aware that he/she needs FMLA-qualifying leave, and the anticipated time and duration of the leave.
  4. If the leave is not foreseeable, an employee is required to give you notice of the need for FMLA leave as soon as practicable.

Cite: Hugh M. Bailey v. Amsted Industries Inc. dba Griffin Pipe Products Company, 8thCir 1999, 138 LC 33,877.

Source: CCH Incorporated is a leading provider of information and software for human resources, legal, accounting, health care and small business professionals. CCH offers human resource management, payroll, employment, benefits, and worker safety products and publications in print, CD, online and via the Internet. For more information and other updates on the latest HR news, check our Web site at

The information contained in this article is intended to provide useful information on the topic covered, but should not be construed as legal advice or a legal opinion.

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