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

UPDATED: Jan 11, 2013

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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


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 10 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).

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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