Unexcused Absences and Labor Laws

An unexcused absence by an employee is any absence for which you determine there isn't a valid reason. For example, you might have a policy that any absence that occurs without a doctor's note is an unexcused absence. The effect of unexcused absences is governed primarily by your employment contracts, if you have them, but labor laws also limit the circumstances in which employees can be disciplined for unexcused absences.

Every state except Montana has at-will employment laws. At-will employment means businesses can fire employees for any reason not covered by some other law. This generally means that employees can be fired as long as the reason is not discriminatory or retaliation for filing a complaint against the employer. If you don't have contracts with employees, at-will employment guidelines apply to your business, and you can fire any employee for any reason -- including excessive unexcused absences, or even a single unexcused absence.

Employment contracts have the force of law, which means they trump at-will employment statutes. If you have a contract with your employee, you must carefully follow its rules governing absences. For example, if any medical absence counts as an excused absence, you can't label those absences unexcused. You might also have to follow certain procedures, such as warning the employee or putting them on a performance improvement plan, before disciplining them for unexcused absences.

The Family and Medical Leave Act is a federal law that applies to businesses with more than 50 employees. While it's most commonly used to take maternity leave, it gives employees the option to take up to 12 weeks unpaid leave in a calendar year for any medical reason -- including caring for an immediate family member with a serious illness. If you don't allow employees to take leave and your business has more than 50 employees, you could be sued. Many businesses with less than 50 employees, however, offer either paid or unpaid leave packages, and doing so can keep your business competitive.

Although firing an employee for excessive absences might not seem discriminatory, there are several situations in which it can become so. Federal law prohibits discrimination against minority groups such as women, racial minorities and the disabled. If you fire one employee for excessive absences but then don't fire another, this could give rise to discrimination claims if the fired employee is a minority. If an employee has a disability, the Americans With Disabilities Act entitles them to "reasonable accommodations," which may include a minor alteration in the working environment or a change in schedule. If you don't offer reasonable accommodations and fire a disabled employee for absences, this could be a form of disability discrimination.