We have an employee that has had consistent attendance problems over the course of her employment (4 years). There are times where it is better and then she falls back down again. A two week stretch of good then a bad run for a week.
Recently she has been claiming that she can not work because she has migraine headaches. This is a new excuse for her. I am trying to determine the liability to the company if we write her up for excessive tardy’s and absenteeism. I have researched migraines and I can not anything conclusive.
My first question is why has this gone on for 4 years? That makes it harder to deal with. Remember, problems seldom heal themselves. ‘Tis better to deal with the problems when they first rear their ugly little heads–or headaches in this case.
Now, do you have an attendance policy? If yes, have you been enforcing the policy across the board? I suspect not, because an oft absent employee would have been terminated a long time ago–before the migraines started. But, things are as they are and here we sit.
Two things (at least!) you need to keep in mind–the Americans with Disabilities Act and FMLA. Do migraines fall under ADA? Well, the best answer I can give you is maybe. (See, aren’t I helpful?) The question is does, do her migraines “substantially limit” a major life activity? If yes, then you must make reasonable accommodations for her, provided she can do the job. If no, then it doesn’t apply and you don’t have to accommodate her.
Let’s assume they are substantial and ADA does apply. What is a reasonable accommodation? Taking time off whenever she wants is not reasonable, in my book. Depending on the job, working flexible hours, dimmed lighting, reduced computer usage or something else can all be “reasonable accommodations.” If migraines truly are her problem, perhaps one of these accommodations will solve the work problem.
It probably won’t, though. I imagine a migraine strong enough to substantially limit a major life activity won’t allow her to function through the day, even with all the reasonable accommodations in the world. Which brings us to FMLA.
In order to qualify for FMLA she needs a doctor involved. Once the paperwork is filled out and she’s granted “intermittant” FMLA–which means she can take off when she needs to for her illness–she’s limited to 60 days (12 weeks x 5 days a week) of time off due to her qualifying illness. After that, you can terminate her for absenteeism.
FMLA is tricky because while she is out on an FMLA approved absence you can’t count any work she didn’t do against her. It’s easier to administer a traditional FMLA leave where multiple weeks are taken together.
If she doesn’t qualify under FMLA and she’s still absent fire her.
But acknowledge that you should have dealt with this years ago. You should have an attendance policy in place and if her multiple absences violated that, then she should have been terminated. Without an attendance policy it’s difficult to be fair across the board. She should be an at will employee, which means you can terminate her at any time. But, if you are concerned that she will cause problems, offer her some severance in exchange for a general release. Make very sure that you don’t ask her to waive her rights to FMLA, because from what I understand, that’s not waivable.