Termination for Absence or Lateness

As “at-will” status permits either the employer or the employee to freely end the relationship even with no advance notice and for no reason at all, obviously a business can legitimately terminate an “at-will” worker for not showing up or for being late.  However, there are some practical considerations.

Normally, management should not be moved to make such a significant move on a single instance or a few isolated occurrences.  Termination is rarely the first solution since a company has usually gone through some expense and time to train an individual worker.  The majority of absent or tardy employees are willing and able to improve their reliability by a discussion alone.

It also matters why the worker has been absent or late.  If the employer is aware the employee was injured on the job but must fill the person’s position to maintain operations, that company should take care to document the business necessity of having to lay off that injured worker.  An individual may have a discrimination claim if he can show that management terminated him or her because he/she has filed or who intends to file for workers’ compensation insurance recovery.

Similarly, certain workers unable to work due to any illness, injury or temporary disability may be entitled to unpaid leave and reinstatement to their old or a comparable position.  Such rights depend on the size of the company among other factors.  For instance, in California, any business with five or more persons on its payroll must provide up to four months unpaid leave for an employee unable to work due to medical complications of pregnancy, childbirth or newborn care.

While an employee exercising a right to any such unpaid leave is entitled to have his or her former job back or a comparable position as long as he/she returns to work within the legally specified time limit, such worker is entitled to no greater protection against a business-related termination than if he or she was not out on a leave.  For example, if a company must for business reasons lay off a significant number of workers, those out on leave are entitled to no greater protection than if they were still working at the time.

Thus, again, management must take particular care when laying off a worker currently out on a protected leave.  This is a situation where a company should almost certainly seek the guidance of skilled legal counsel.  Among the many precautions, an employer should document the business reasons for the decision to the greatest extent reasonably possible.  Even then, management should communicate forthrightly with the person on leave and seriously consider offering that worker severance pay in exchange for a signed release document.

See also, “Written Employee Attendance Policy,”  “Pregnancy Disability Leave, Employers’ Obligations,’  “Disability and Leave of Absence Policies, Keeping Up with Changing Employment Laws,” and “Termination Of Employees, How To Fire A Troublesome Worker Without Getting Burned.’