• December 4, 2023

How should we deal with an employee who takes excessive sick leave?

By Katie Brennan, SHRM-CP | December 1, 2023

Employers are often hesitant to take corrective action when an employee is frequently absent from work due to illness. But even with a doctor’s note, not all health-related absences are protected under the law.

When an employee’s absences exceed what is permitted by company policy, their manager should promptly address the issue and meet with the employee to explain the company’s attendance policy and call attention to any related trends in the employee’s behavior (e.g., habitually calling in sick on Fridays or Mondays). Depending on the company’s disciplinary procedures, the manager may issue a verbal or written warning or otherwise document the discussion.

However, if the employee discloses that their attendance issues are due to a specific medical condition, the employee may be protected under various laws, including the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA) and state medical leave programs. For any of these laws to apply, however, an employee’s health condition generally needs to be identified as chronic or requiring inpatient care. Less debilitating medical diagnoses, such as the flu or common cold, do not typically qualify under these laws.
FMLA generally covers employers with 50 or more employees and requires companies to provide up to 12 weeks of continuous or intermittent unpaid leave to eligible workers with a serious health condition. To be eligible, an employee must have been employed by the organization for 12 months, worked 1,250 hours in the preceding 12-month period and worked at a location where the company employs at least 50 workers within a 75-mile radius.

If the employer is covered under FMLA and their medical issue may meet the law’s definition of a “serious health condition,” HR should give the employee a notice of their potential eligibility for leave and their rights and responsibilities under the law. This should take place within five days of learning of the employee’s need for leave.

The employer may require the employee to provide a doctor’s certification of their condition and an estimate of how long they may need leave to help determine whether the employee qualifies for job protection.

If a worker is ineligible for FMLA or has exhausted it, employers with 15 or more workers may be required to provide leave under the ADA, unless that would create an undue hardship for the company. Employers should work with the employee to determine whether their health condition is a disability as defined by the ADA and how much leave they need. The ADA allows employers to require a doctor’s medical certification of the disability.

Some states have their own family and medical leave laws similar to the FMLA that entitle workers to job-protected leave, so employers should also check their state regulations.

Katie Brennan, SHRM-CP, is an HR Knowledge Advisor for SHRM.

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