Excessive Absenteeism, Patterning, and Intermittent Leave: Scripts for Success

Excessive absenteeism and FMLA/CFRA abuse: two chronic challenges for every California HR professional. Today, we’ll look at Paul Falcone’s advice for just these situations.

Falcone is the author of the best-selling 101 Tough Conversations to Have with Employees: A Manager’s Guide to Performance, Conduct, and Discipline Challenges and 101 Sample Write-Ups for Documenting Employee Performance Problems: A Guide to Progressive Discipline and Termination.

Falcone’s remarks came at a recent Society for Human Resource Management Conference and Exhibition. He offers some effective scripts for these tough conversations below:

Excessive Absenteeism and “Patterning”

“Sarah, now that we’ve discussed the number or quantity of incidents, we’ve got to discuss the quality, so to speak. Yes, I look at the number of unscheduled absences, but I also look to see when they’re occurring on the calendar.

“In your case, two of the three incidents either happened on a Friday or a Monday, and that’s a separate problem in and of itself.

“The way we look at it, any time an employee takes more than 50 percent of his or her time off around weekends and holidays, we may have a ‘pattern’ problem on our hands.

“In your case, with two of the three incidents happening around the weekend, that represents 66 percent of your incidents occurring on either end of your regularly scheduled time off. That’s an additional problem and is considered a separate infraction, as far as I’m concerned.

“Yes, three occurrences of unscheduled absence won’t trigger anything formal at our company in terms of a disciplinary response. And two of three incidents occurring on Mondays or Fridays may be pure coincidence. But I need you to become very sensitive to this issue as well.

“In short, I need you to fix both areas. Can I count on you to do that?”

Intermittent FMLA Abuse

“We respect your need for intermittent time off, but we’ll ask you to meet us half way …

“Your medical certification authorizes you to have time off as follows …

“However, it doesn’t authorize you to come in late, fail to get your supervisor’s permission, or take additional time off beyond …

“So, if you need additional time off beyond the scope of your current med cert, you’ll need to see your doctor and provide us with appropriate documentation.

“Likewise, please understand that intermittent FMLA abuse is subject to corrective action, so we’ll want to keep the lines of communication open at all times.”

Falcone’s Final Tips

• Don’t ever rush to judgment: You’re better off placing an individual on a paid, investigatory leave when you need additional time to reach a conclusion.
• Don’t manage by fear of a lawsuit. Instead, make sure that if one comes your way, you’re getting sued on your terms, not theirs!
• Always focus on shifting responsibility for improvement away from your company and to the employee (where it rightfully belongs).
• Successful verbal interventions allow you to handle matters respectfully, responsibly, and in a timely manner, which are the key tenets of workplace due process and fairness.

In his experience, says Falcone, about 3 percent to 5 percent of employees cause problems with FMLA, and that’s just a cost of doing business. “Manage the 95 percent,” he says, and sooner or later the abuse will catch up to the others.

Terminations: A Complete Guide for California Employers

Eventually, of course, many of those “5 percent” chronic offenders will be subject to termination. And even when your reasons are fully sound and justified, ending an employment relationship is a legal minefield that you should navigate only after careful consideration and adequate preparation.

Knowing when to terminate an employee is just as important as knowing how to terminate an employee. Even though most employment relationships are “at-will,” meaning you can terminate the employee at any time, what you say and do during the employment relationship can significantly impact how you must treat employees before letting them go.

Don’t make a move without checking out our brand-new reference manual, written specifically for California employers.

Terminations: A Complete Guide for California Employers covers everything you need to know about both voluntary and involuntary separations, including:

• Lawful vs. unlawful employee terminations;
• Employee discipline;
• The importance of documentation;
• How to create a paper trail that protects you in the event of litigation or threatened litigation;
• A step-by-step process for investigating alleged workplace misconduct;
• Termination considerations for all situations: poor performance, misconduct, personality issues, insubordination, tardiness, and absenteeism;
• Special pretermination considerations to keep in mind for employees on leave, unionized employees, and more;
• The state and federal rules on mass layoffs and RIFs;
• What to do when an employee resigns—and when a departure might be considered a constructive discharge;
• Important termination and resignation documentation you must keep on file;
• Payroll considerations for departing employees: final paycheck rules and more;
• Tips for effective termination meetings and exit interviews that both provide you with needed information and help keep you out of legal trouble;
• Legal do’s and don’ts for giving references;
• Employee rights to unemployment benefits in California;
• How to protect your company from termination-related lawsuits;
• And much more!

It’s like having a California employment lawyer on call, working on your most pressing termination questions and concerns, at a fraction of the cost!

Best of all, we’ll send you a brand-new edition each year so you always have the most up-to-date policies available. Don’t delay—order today, and make sure your termination processes are in order, before you get sued.