An employee who regularly is absent, arrives late or leaves early can be a headache for a manager.  Oftentimes the manager gets fed up with the employee and either writes them up or fires them for being unreliable.  However, employers must tread lightly before deciding to discipline or discharge an employee who misses work for claimed health reasons.

First, the leave might be protected by state or federal leave laws.  In that case, the employee is entitled to take the leave and return to work without reprisal, and the absence cannot be held against them.

Second, even if the employee isn’t protected by leave laws, they may be protected by state or federal law protecting disabled employees.  That is because the definition of a disability not only covers those permanent conditions that one might think of as a “disability,” it can also cover temporary medical conditions if the condition substantially limits the employee’s ability to do their job.  Now, this doesn’t mean every cold, flu, bump or bruise is going to qualify.  But conditions like a badly broken leg or ongoing migraines may qualify.

If the employee does have a disability, the employer has an obligation to engage in a dialogue with the employee to determine if a reasonable accommodation is needed and available.  Depending on the circumstances, this may include providing additional leave and relaxing attendance control policies.

If you encounter a situation where an employee is missing work for claimed health reasons, before you decide to let that employee go or write them up, you should consult with your employment lawyer.  The risk of getting it wrong is a lawsuit where the employee can potentially seek to recover lost wages, benefits, damages for emotional distress, punitive damages and attorney fees.