Can You Fire an Employee for Excessive Absences?

Your hourly employee is always absent. Can you fire them? Although the general answer is yes, it is accompanied by many what-ifs.

Warehouse worker worried about excessive absences

According to the U.S. Bureau of Labor Statistics, just over 110,000 people were absent on any given workday in 2020.

Absenteeism costs employers $225.8 billion annually in the United States, or $1,685 per employee according to a frequently cited Centers for Disease Control and Prevention (CDC) study.

There’s no doubt that employers need to take a closer look at their attendance and absence policies as well as measuring any absences against their employees’ overall productivity.

According to SHRM, “[b]y carefully planning and designing policies, managing absenteeism, and its administration, and tackling the underlying causes (e.g., health issues, employee morale), an organization can significantly reduce the impact of employee absences on its bottom line.”

Is it legal to terminate an employee for excessive absenteeism?

Although the general answer is yes, it is accompanied by many what ifs.

If the employee’s absences are caused by medical reasons, including pregnancy or disability, you may—and more than likely would—violate the Family Medical Leave Act, the American Disabilities Act, or any applicable state laws.

These laws are complex and you should seek legal guidance if you have an employee who has excessive absences and can no longer perform his or her essential job functions.

What precautions should you take as an employer when firing an employee for excessive absences?

When firing someone for excessive days off work, an employer can protect itself legally by establishing specific, written policies regarding absences. The employer must apply these policies—including both absence and accommodation request policies--uniformly to all employees.

Further, you want to implement an objective tracking system of all absences, giving you the ability to apply these policies evenly and fairly. Notify your employees of these policies, and, of course, contact your employment attorney if you have a question.

Get in the Know: Employers and Employees both have Rights

It’s critical to understand your rights as an employer, such as being able to terminate someone under the at-will doctrine or according to the terms of the employment agreement.

You also must understand the rights of employees, including anti-discrimination and anti-retaliation rights under both state and federal law.

The employer-employee relationship can be a complex one—especially if performance issues result from excessive absences.

Being proactive is much less costly than responding reactively in a court of law

Creating and documenting workplace absence management policies and procedures protects yourself from potential lawsuits and your employees by proving you will treat all workers fairly, giving them full notice of your expectations.

Jennifer

Jennifer Kiesewetter is a seasoned attorney in the field of employee benefits, encompassing qualified and nonqualified employee benefit plans, welfare benefit plans, and other human resources issues. She is also an Adjunct Professor of Employee Benefits at University of Memphis Cecil C. Humphreys School of Law, where she teaches remotely. Additionally, Ms. Kiesewetter is a frequent writer and speaker on the topic of employee benefits and health care compliance regulatory law, locally, regionally and nationally.

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