What are my rights if I have several employees who are constantly calling off of work but always seem to be able to provide doctors’ excuses?

UPDATED: Sep 30, 2022

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What are my rights if I have several employees who are constantly calling off of work but always seem to be able to provide doctors’ excuses?

I do not know the law that well, however these call-offs are getting very excessive. I am sure that they have missed at least 12 shifts each in the last 3 months. What can I do without getting myself or my company in trouble? I am not sure if there is an attendance policy in place and I am sure that should be the first place to start..

Asked on January 2, 2016 under Employment Labor Law, Tennessee


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 7 years ago | Contributor

First, unless they have written employment contracts, these are employees at will and you may terminate them *at will* if you believe that they are unproductive, bad workers, disrespectful, have personality conflicts with managment, etc.
Second, if you want to link the termation specificlally to absences, have the workers used paid time off (e.g. sick days) to cover their absences? Or are they eligible for, your company covered by, and their absences also eligible for leave under the Family and Medical Leave Act--and have they then properly applied for and used FMLA leave? You can find the full criteria for FMLA coverage on the Department of Labor website, but if you have less than 50 employees, your business is not covered by FMLA...and even if you are, any worker not there for at least a year is not eligible to use FMLA leave.
The law does *not* require employers to keep employees who miss work, even for alleged medical excuses, unless they use PTO they earned or FMLA (unpaid) leave for the absences. If they miss work, even with doctor's notes, but don't have the accured paid time off to cover their absences and don't use or can't use FMLA leave, you can terminate them.
That said, it would be good to have an attendence policy, and you should speak with an employment law attorney about drafting one.

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