What to do if we have an employee who has excessive absences?

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What to do if we have an employee who has excessive absences?

He always has a doctor’s excuse but has missed almost 5 weeks of work. he has given us excuses that put him on “light duty” but we have nothing of that nature available for him. He is not an FMLA covered employee. We have an internal policy that allows up to 6 weeks of unpaid medical leave. Are we permitted to terminate this employee when his leave runs out? How long do you have to keep an employee who is unable to perform their duties? He is also in the middle of appealing a worker’s comp claim that was previously denied. It will be his tenth. What are the legal implications of terminating this employee?

Asked on January 11, 2013 under Employment Labor Law, West Virginia

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

An employer is not obligated to keep any employee who misses work, when such absences are not:

1) Approved by the employer, or pursuant to some policy of the employer or an employment contract with the employee;

2) Covered by paid time off the employee earned, such as sick  leave, vacation days, etc.; or

3) Authorized under FMLA  or a similar state law. 

A doctor's note does NOT entitle an employee to miss work, other than as above. From what you write, once this employee has used up his leave, you should be able to terminate him. However, you are advised to consult with an employment law attorney first, before  acting, since this employee appears to be litiguous (multiple worker's comp claims; appealing a denial of a claim).


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