If a employee was fired for excessive absences but he produced an emergency room slip 6 months later that we suspect is bogus, do we have to accept it?

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If a employee was fired for excessive absences but he produced an emergency room slip 6 months later that we suspect is bogus, do we have to accept it?

Asked on December 19, 2015 under Employment Labor Law, New Jersey

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

Was FMLA leave involved? Did the employee cover their absences with earned PTO? Was there something covering additonal days off in a union agreement or employment contract? If not, then they were an "at will" employee and as such you were within your rights to terminate them. In fact you could discharge them for their time out, for any reason or no reason at all. This is true so long as no form of actionable discrimination played a role their treatment. Otheriwse, their dismissal was perfectly permissable under the law.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 5 years ago | Contributor

No, you do not have to accept it. It doesn't matter if he had a "legitimate" excuse: employers do not have to let employees miss work unless they had and used PTO (e.g. sick days) to cover the absences, or unless they were eligible for (and the company larger enough to be covered by) FMLA leave and *at the time* the employee applied for an validly used it. Otherwise, an employer may terminate an employee for excessive absence, regardless of the reasons for absence; and in particular, may make the decision based on what is known at the time, and is not required to revisit that decision a half-year later.


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