Ask the ExpertTermination for Excessive Absenteeism
hri_Admin Staff asked 5 years ago

Can you fire an employee for missing too much work?

1 Answers
Glenn Demby Staff answered 5 years ago

It depends. The rules are complicated but let”s see if I can simplify them for you.

Step 1: Determine If the Absence Is “Culpable”

Culpable absences include things like deliberately missing work when there”s nothing physically or mentally wrong. Such absences are subject to discipline like any other form of misconduct.

But if the absence is non–culpable, e.g., absences due to illness or injury, discipline is much trickier.

2. If Absence Is Non-Culpable, Does It Frustrate the Employee”s Contract?

There are situations when it is appropriate to impose discipline for non–culpable absences. One of these is when you can prove that the absence “frustrated” the employee”s contract and made it impossible to do the job you hired her to do.

Proving frustration of contract is hard. To find out what you must do to prove frustration, click this link.

3. Does Discipline Constitute Disability Discrimination?

Because the injuries and illnesses that cause employees to miss a lot of work are often considered “disabilities” under human rights laws, discipline for absenteeism may be considered a form of discrimination. In such cases, liability typically turns on whether the employer made reasonable accommodations for the employee or, conversely, whether putting up with the employee’s continued absences constitutes undue hardship.

Click this link to find out how to determine when long non-culpable absences reach the point of undue hardship.