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PDL and absences
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PDL and absences
Discuss employment-law issues such as family leave, overtime, disabilities law, harassment, immigration and termination.
A new employee (about 3 months) has had numerous absences. After about a month, she was sick 2-3 times a week for 3 weeks. I had a discussion with her to let her know that her attendance was of concer
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Forums » Topic Forums » Legal Forum » PDL and absences
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PDL and absences
posted at 1/26/2011 7:23 AM EST
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Posts: 94
First: 2/7/2008 Last: 3/21/2011 |
A new employee (about 3 months) has had numerous absences. After about a month, she was sick 2-3 times a week for 3 weeks. I had a discussion with her to let her know that her attendance was of concern and unless she had a disability that we needed to know about requiring reasonable accommodation (although good attendance was considered an essential function of her position,) she would be disciplined. (I had heard that she had just found out she was pregnant.) She told me that she was at which point I let her know that she was eligible for PDL and that we needed certification to indicate that she would need to use it intermittently due to her pregnancy. I also stated this in writing. She indicated that she didn't have insurance anymore and was working that out and would get this to me when she had her next appointment as she could not find the visit information from her first visit. I still have not received this and she continues to be absent and late. (Some absences she has indicated are not due to her pregnancy but due to other sickness.)
I know we must tread lightly, but absent the certification, do we have grounds to dismiss? How long should she be given to submit this after our requests? |
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PDL and absences
posted at 1/26/2011 7:56 AM EST
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
Since you know she is pregnant ( assuming this is true..) that would "automatically" make her earlier related absences valid.
Having said that you need her to have them certified to be excused. The burden for that is on her. If she cannot produce valid leave information she has no entitlement to paid leave benefits. She is not "disabled" until she presents you with proof that she cannot work. Until then she is just another employee with certain sick leave entitlements like the rest of your staff. Just because she is pregnant does not put her in a higher standing than any other person and she is not entitled to abuse your sick leave policy until she is deemed unable to work. She does have certain extra job protection rights so termination is not appropriate unless she does something that is insubordiate, major policy violation, etc. Don't forget to give her the FMLA forms and deem this as FMLA absences as necessary. Discussions around all this with Employment Lawyer is always advised. |
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PDL and absences
posted at 1/26/2011 8:35 AM EST
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Posts: 94
First: 2/7/2008 Last: 3/21/2011 |
Thank you for this information. You said that "She does have certain extra job protection rights so termination is not appropriate unless she does something that is insubordiate, major policy violation, etc."
Absent the documentation, what protection rights does she have that would excuse the absences? If she abuses the attendance policy (still sick or tardy 1-2 days a week) and does not provide certification of her pregnancy disability, would this not be justification for termination? Since she has not actually provided any documentation regarding her pregnancy, would this even qualify for FMLA? I had not provided her with the reponse to a request for it because she has only stated she is pregnant. Obviously, since she has only worked for 3 months, (not to mention that we do not have 50 EEs 50 in CA let alone within a 75-mile radius)she is not eligible for FMLA, but if the notice is required (and is now late) I will provide one. However, I did give her a response to her PDL request and requested the documentation indicating she is disabled due to her pregnancy. We don't provide sick leave or paid leave for disabilities (only PTO which she hasn't accrued) so she isn't eligible for any paid time off. That doesn't really factor into the equation. |
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PDL and absences
posted at 1/26/2011 9:19 AM EST
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Posts: 2442
First: 2/12/2000 Last: 9/14/2011 |
"Absent the documentation, what protection rights does she have that would excuse the absences?" If pregnant, she has PDA job protection. (if she is pregnant you won't need a doctor to confirm soon enough!) No government agency will believe at this point that the actions you take are not related to wanting to remove a pregnant employee. If she abuses the attendance policy (still sick or tardy 1-2 days a week) and does not provide certification of her pregnancy disability, would this not be justification for termination? Yes you will be fine IF she is not pregnant. Since she has told you she is you should assume she is until you have proof she is not. So keep good records. There is no excuse for tardys as this is not illness related. Just make sure that you are keeping records of ALL employees tardys and can show them to the government. Otherwise they will conclude that you were discriminating against the pregnant employee. I had not provided her with the reponse to a request for it because she has only stated she is pregnant. Obviously, since she has only worked for 3 months, (not to mention that we do not have 50 EEs 50 in CA let alone within a 75-mile radius)she is not eligible for FMLA, but if the notice is required (and is now late) I will provide one. FMLA would not apply so you can ignore it for now. |
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