Q. Can I fire an employee after the 90 Probation Period for a poor work attendance record and still avoid paying unemployment?
A. Let’s say you have an employee with a work attendance record that looks something like this, for the past 12 months:
Called in sick at least once a week, usually on a Monday or Friday.
Left work for illness on 12 other days.
Missed work on two days because of a car breakdown.
Missed work five other days because he or she was unable to get a babysitter.
Simply firing the employee for excessive absence from work will not keep the person from drawing unemployment from your account.
How do you handle this type of situation to prevent abuse and terminate the employee if abuse continues?
To help prevent abuse: Have work attendance rules in writing so employees know them. Begin disciplinary measures immediately when absences begin. But to prevent the employee from drawing unemployment, once he or she is terminated you must be able to prove that the poor work attendance record was willful. In the example above, the employee could argue that the repeated absences were beyond his or her control. Therefore, they were not willful.
Strategy: Meet with the employee. Tell the individual briefly, clearly, and to the point what the attendance and approved absence requirements are for continued employment. Tell the employee that if these requirements are not met — beginning immediately — he or she will be terminated.
Then monitor the employee’s work attendance closely. At the first instance of an unexcused absence for which the employee has no justifiable excuse, terminate the individual. At any fact-finding interviews or hearings that might follow, limit your justification for termination to the immediate instance that caused the termination. Do not recite a long history of absences that the employee could argue were beyond his or her control.
We will be happy to email you an “Employee Handbook” by the national labor law firm Ogletree Deakins. APC is not offering legal advice. We recommend that that you consult an attorney.