Even employee-friendly California acknowledges that employers have a reasonable expectation that their employees will show up to work as promised, be on time, and will not have excessive absences. Indeed, tardiness and absenteeism can readily serve as legitimate employer defense to employee claims of unlawful termination. Absenteeism or tardies can also cause a denial of benefits with the Unemployment Development Department (“EDD”). However, not all absences are created equal.
What type of absences and tardies are protected?
Some absences and tardies cannot form the basis of a termination at all. In-fact, depending on the reason for the underlying absence, employees who have been fired for missing too much work can sue for significant damages in a wrongful termination case. It all depends on the underlying reason for the employee’s absence or tardy, and whether or not the employer had reasonable notice. Numerous reasons can create a protected absence or tardy, including jury duty, the death of a family member, civil service obligations with the national guard, and parent-teacher conferences. However, medical reasons for the employee or for an employee’s family member are by far the most common type of protected absence.
Medical-related absences can range from anything between the common cold and missing work because of cancer. Even if the underlying health condition does not qualify as a “disability” for purposes of the California Fair Employment and Housing Act (“FEHA”) or a “serious medical condition” under the Family Medical Leave Act/ California Family Rights Act (“FMLA/ CFRA”) it can still be a protected absence for purposes of an unlawful termination. Moreover, there is not a specific legal cap on the total number of medical-related absences or tardies that can occur before they become unprotected, automatically allowing termination in all instances. The total number of protected absences and tardies depends on the circumstances of the employee, the employee’s position, and the size and resources of the employer.
Do I need to give my employer notice if I am late or absent?
Almost equally important as the purpose of the underlying absence, is that the employer has notice that the employee has taken an absence or is tardy for a protected reason. In other words, employers who have no clue why the employee is absent or late will not likely face legal liability for terminating an absentee employee, even if the underlying reasons for the absence were protected. For these reasons, it is often helpful for the employee to specifically and proactively inform the employer of any medical issues that are causing absences or tardiness.
Moreover, legally adequate notice can take the form of a doctor’s note, a note or call from a spouse, or the employee herself. Notice does not have to be in writing, on a human resources department or company form, nor come from a doctor. Similarly, the employee is only required to give reasonable notice to the employer when they are absent or tardy for a protected purpose. Reasonable notice could be months ahead of time, for instance if the employee has a specific date for a surgery. Reasonable notice could also be no notice at all, for instance if the employee woke up violently sick. Lastly, under a legal concept called “constructive notice” an entire company or organization is deemed to be on notice if the employee’s lowest ranking supervisor was notified.
Can my employer automatically fire me for missing a specific number of work days?
No, not if any of the missed days are protected. An employment policy that disciplines or terminates an employee who has been absent or tardy a specific number of times is illegal if any of the underlying absences were for protected reasons. These policies are called, “no fault attendance policies.” Such policies are unlawful because they ignore that there are many situations where the employee cannot be punished for missing work. Despite being illegal for decades, no fault attendance policies are still prevalent.
Can my employer say I resigned if I did not show up at work?
Although decreasing in prevalence, employers will still frequently tell the employee that the employee has “resigned” if the employee did not show up to work, even if the absence was for a protected basis and the employee had no intention of quitting. This often is told to the employee in a letter from the employer that reads, in substance or affect, “We have accepted your resignation.”
There is no legal authority in California for this practice. An employee’s involuntary termination, even if legally justified, does not become a voluntary resignation simply by the employer deeming it as such. Unfortunately, this practice is frequently used with the EDD in an effort to deny the employee unemployment benefits. Employers who engage in this practice risk exposure to both defamation and punitive damages.
Have you been fired for taking protected absences? Contact the Law Office of Brian Mathias.
