Question: How can we discipline a new employee who takes unplanned, unexcused days off for sickness, family emergencies, etc.? We don’t currently have a policy on how many unexcused days off are allowed.
Answer: Wisconsin employers have an interest in ensuring employees don’t engage in misconduct, including unplanned, unexcused time off from work. Accordingly, the Wisconsin statutes for unemployment compensation include provisions that permit discharging an employee for engaging in misconduct.
The Wisconsin statutes provide protection for employers that don’t have a policy explicitly allowing a certain number of unplanned, unexcused absences by permitting the discharge of an employee for absenteeism. Specifically, when an employee engages in more than two occasions of absenteeism within a 120-day period, and if the employee doesn’t provide notice and one or more valid reason for their absenteeism, you are permitted to discharge them for absenteeism. This provision doesn’t define how long an employee must be working for the employer for the statute to apply, indicating that it takes effect immediately upon employment. Should the new employee repeatedly fail to provide notice for the unexcused absences, you are permitted to discharge them in accordance with Wisconsin statutes.
If the employee provides notice, they must also provide one or more valid reason for the absence. For example, an employee who must take time off for family emergencies must comply with the rules set forth within the Wisconsin Family and Medical Leave Act (FMLA) or the federal FMLA. If an employee is eligible for family or medical leave, you may require them to provide certification, stating that the child, spouse, domestic partner, parent, or employee has a serious health condition, and indicate the date the serious health condition commenced and its probable duration.
You can opt out of the statutory definition of misconduct by absenteeism and set your own absenteeism policy. The violation of such a policy will constitute statutory misconduct. Employers that choose to draft their own absenteeism policy within their employment manual must ensure the employee has acknowledged receipt of the manual and the absenteeism policy. Should you choose to draft your employment manual to include language pertaining to unplanned, unexcused work, such a policy may not be more limiting than the state statutes prohibiting absenteeism.
Finally, employee absences may be protected if they have a legally cognizable disability under the Wisconsin Fair Employment Act or the Americans with Disabilities Act (ADA). Employers that are on notice of an actual or perceived disability must engage in the interactive process before discipline or termination of an employee and potentially engage in a reasonable accommodation of such disability if there is no undue hardship.
Understanding your right as an employer to ensure employees appear for work by informing them of the requirement to provide notice of an absence can help you manage your business’s needs and set your employees up for success.
Rebecca Bisone is an associate with Axley Brynelson, LLP, in Madison, Wisconsin. She can be reached at rbisone@axley.com.
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