FMLA Leave: Attendance Warnings & Absences
A practical wording guide to documenting attendance concerns without triggering FMLA retaliation claims.
The Paradox of Attendance and Protected Leave
Under the Family and Medical Leave Act (FMLA), eligible employees are entitled to take job-protected, unpaid leave for specified family and medical reasons. One of the most common triggers for FMLA retaliation lawsuits occurs when a manager counts FMLA-protected absences (including intermittent leave) toward disciplinary actions or performance reviews under a standard attendance policy.
Prohibited Pitfalls in Attendance Communications
When drafting communications regarding attendance, managers must ensure that protected absences are strictly isolated. You cannot count, reference, or reprimand an employee for taking FMLA-approved time off. Doing so constitutes "FMLA interference" and "retaliation," which carry significant legal and financial liabilities.
Wording Comparison: Attendance Warnings
| Risky Drafting (Retaliation Risk) | Safer Rewrite (Compliant Wording) |
|---|---|
| "Your attendance has been very poor lately. You missed three days last week due to your FMLA flare-up, and it is putting a strain on the team." | "We need to discuss your attendance record. Excluding your approved medical leave, you have had three unscheduled, non-FMLA absences this month that violate our call-in policy." |
| "If you keep calling out sick on Fridays, we will have to reconsider your role here, regardless of your doctor's notes." | "To ensure reliable scheduling, please ensure all non-emergency, unscheduled absences follow the standard notification protocol outlined in our handbook." |
Best Practices for Tracking and Discipline
- Separate Record Keeping: Always maintain separate track records for FMLA leave and regular, non-protected absences.
- Clear Separation of Actions: If disciplinary action is taken due to attendance, the written notice must explicitly state that FMLA-approved absences were not considered or factored into the decision.
- Objective Documentation: Document the specific dates of non-protected absences and reference the company policy that was violated (e.g., failure to call in 2 hours before a shift).
ā ļø Legal Danger Zone
Using terms like "reliability," "dependability," or "commitment" in a disciplinary letter when an employee has recently taken FMLA leave can be interpreted as code words for penalizing protected leave. Keep all evaluations strictly aligned with objective, non-protected metrics.