Can You Fire an Employee for Not Showing Up to Work?

Woman with a cold or flu or allergy working at home.
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An employer may want a worker to do dozens of things every day, but the one that tops the list is to show up for work. It doesn't matter how talented or experienced an employee is, if they don't come in and don't call in, it becomes a problem. Can an employer fire an employee for this offense? It is usually perfectly legal for an employer to fire a worker who repeatedly misses work without calling in as long as they act in accordance with the terms of the employment contract.

Employment Laws

Laws that protect employees are enacted at both the federal level and the state level. The primary wage and hour law that protect workers is the Fair Labor Standards Act (FLSA), which sets basic minimum wage and overtime pay standards. However, states are also given authority to enact wage and hour laws for employees in their state, and those employees will be entitled to rely on whichever law gives them the most protection.

While these laws cover matters such as when the employee is entitled to receive their last paycheck after termination, they do not generally cover reasons for termination. The federal government and most states leave the issue to the parties to negotiate and to set out in their employment contracts. Generally, neither work contracts nor union contracts protect an employee who simply stops showing up for work, termed absenteeism. However, if the contract describes how many days an employee must miss before they are fired, the employer is bound by this.

At-will Employment

In many nations, labor laws restrict employers from firing an employee without "just cause." However, in the United States, employers do not have the burden of proving “just cause” for termination of employment as long as they avoid discriminatory or illegal action and follow the terms of their employment contracts.

Many states are considered at-will employment states and most employees are at-will employees. That means that the employer is allowed to fire employees at will, and the employee can quit at will. However, most states allow an employee to raise public policy exceptions to this right. For example, in these states it is illegal to fire an employee for:

  • Refusing to perform an illegal act.
  • Reporting any violation of the law by the company or other employee.
  • Undertaking actions considered in the best interest of the public.
  • Exercising any statutory right.

Some states, like California, imply into employment contracts a covenant of good faith and fair dealing. This implied protection can make it illegal for an employer to fire an employee to avoid paying some benefits otherwise due to them, for example. However, absenteeism in and of itself is not protected by this implied contractual covenant.

Is Absence Job Abandonment?

When an employee doesn't show up for work or doesn't call in, the employer should find out the situation before taking any action. While the worker may be lounging at the beach, it is just as likely that they are faced with an emergency or are under a misunderstanding about their work schedule. They might have been in an auto accident or had to speed a very ill family member to the hospital. It's important not to jump to conclusions and make accusations that may turn out to be untrue.

Employment management experts suggest that an employer react with compassion and understanding, even if the action technically qualifies as job abandonment, especially if this is the first instance of absenteeism. That means that, even if the worker accidentally overslept, to deal with them as human beings.

Preparing a Uniform Company Policy

The important thing is to have a work policy about absenteeism and make sure every employee is aware of it. This policy should be written and a copy distributed to every employee. It should remind the workers how to call in if they cannot come to work, how to report sick leave, how to request days off. It should also note the consequences of failure to show up without notifying the company.

A common policy provision states that an employee will be considered to have quit if they don't show up to work or call in for three consecutive days. But there is no law that requires this policy, and the employer may consider three days too long. It is up to the employer to set a policy that appears fair and just. Some employers opt to fire workers after one single instance of a no-call/no-show absence. But workers are likely to view such laws as brutal, and courts may not be willing to uphold them.

Family and Medical Leave Act

Any written policy should also mention the employee's rights under the Family and Medical Leave Act (FMLA) and outline the steps for requesting this type of leave. The FMLA is a federal law that gives eligible employees of covered employers the right to take unpaid leave for specified family and medical reasons. While they do so, their jobs are protected and their group health insurance coverage must remain current under the same terms and conditions as if the employee had not taken leave.

Employees eligible for time off under FMLA are entitled to 12 workweeks of unpaid leave in a 12-month period. This can be for the birth or adoption of a child, a serious personal health condition, or a serious health condition experienced by the employee's spouse, child or parent.

It can also be for any qualifying urgent or emergency situation that arises out of the fact that the employee’s spouse, son, daughter or parent is a covered military member on “covered active duty.” Alternatively, an eligible employee can take up to 26 workweeks of unpaid leave during the 12-month period to care for a covered service member with a serious injury or illness. In this case, the employee can be the service member’s spouse, son, daughter, parent or next of kin.

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