If you have an employee who has missed work, check whether it was for medical reasons before you take any action against that employee. The federal Family and Medical Leave Act (FMLA) allows employees to take up to 12 weeks of unpaid, job-protected leave each year, and that leave can be taken intermittently. There could also be disability or workers’ comp issues involved.

Ideally, your employee would notify you that the missed work was FMLA leave and comply with all the other requirements you have when work is missed. However, a court may consider an employee’s failure to notify you about the purpose of the leave as a mere recordkeeping error.

Recently, a federal appeals court (the 1st Circuit) reinstated an employee’s case against Walmart. The unanimous, three-judge panel found that the lower court should not have granted summary judgment to Walmart because the employee had potential claims under the FMLA, the Americans With Disabilities Act (ADA) and workers’ compensation.

Multiple absences are not necessarily enough

The employee, a “people greeter” at a Maine Walmart store, was fired because she missed at least two hours of her shift or left early on at least 20 occasions over the course of several months. A store manager allegedly “screamed at” the employee for failing to properly notify the store of her impending absences.

However, the absences stemmed from a 2014 workplace injury to her pelvis. After the injury, the employee took a leave of absence and then a second one 18 months later. The employee claims that she did give advance notice to her managers before she missed work.

Once she was fired, the employee filed suit against Walmart claiming disability discrimination. She also claimed that the company unlawfully retaliated against her for complaining of harassment over missing work for medical reasons. Although the retaliation claim was based on Maine law, employers should be aware that it is illegal under federal law to retaliate against employees who take FMLA leave, are absent due to a workplace injury, or who make a good faith discrimination claim.

Since all of the absences and short shifts were related to the pelvic injury or to complications from that injury, the appeals court could not immediately say whether she had violated Walmart’s attendance policies. It ordered the lower court to hold a trial on the issue.

Employee absences? Take action right away

If you have an employee who has missed work in a way you believe is unexcused, it’s important to track down the reasons for the absence. If it was related to a disability or medical claim, you may need to accommodate such absences in certain circumstances.