Employer that fired employee for tardies (not FMLA) wins in court


Certification did not allow for being late

Sandy requested leave under the federal Family and Medical Leave Act (FMLA). She gave her employer a complete medical certification as they asked. The certification indicated that she would need to be out “1-2 times per month for 1-2 days at a time.”

Sandy’s FMLA leave was approved.

Attendance points

The company used an attendance point system for employees with unplanned absences, that included being late. If employees reached eight points, they could be terminated. Sandy had already collected 6.5 points before she asked for FMLA leave.

While waiting for her FMLA leave to be approved, Sandy accumulated 3.5 more points, at least in part because she was late, bringing her total points to 9. As a result, she was terminated for her excessive unexcused absences.


Sandy sued, arguing that the days she was late should not count as attendance points, but as FMLA leave.

On the flip side, the employer argued that Sandy’s FMLA certification did not support her being late. It said Sandy would need to be out for full days but had nothing about her need to be late.

Court ruling

The court found that Sandy failed to establish an FMLA interference claim. The employer gave a legitimate, nondiscriminatory reason for firing Sandy — she accumulated more than eight points under the company attendance policy, which allowed for termination.

Sandy had no evidence that the attendance points she accumulated for being late were for an FMLA-qualifying reason.

The court pointed to Sandy’s certification, which did not indicate she might be late; only that she needed full days of absence.

Therefore, the court ruled in favor of the employer for firing Sandy who violated the company attendance policy.

Mays v. Newly Weds Foods, Inc.,Northern District of Mississippi, No. 3:22CV101, August 15, 2023.

Key to Remember:Review FMLA certifications thoroughly and apply any attendance points carefully. If a certification does not support an employee being late for work, employers may hold them to it and their attendance policies.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc. The content of these news items, in whole or in part, MAY NOT be copied into any other uses without consulting the originator of the content.


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