Texas Business Today, Spring 2000 Page: 13
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employee with a broken leg, should also be offered to
the pregnant employee.
The Texas Workers' Compensation Act (TWCA) pro-
vides another area of concern for employers. Section
451 of the TWCA prohibits employers from discrimi-
nating against employees who have filed, or otherwise
participated in, a workers' compensation claim. This
prohibition even protects employees who have been in-
jured on the job but have not yet filed a claim. This area
of the law so complicated, and the risk of litigation so
high, that employers considering the termination of a
frequently absent employee who has filed a workers'
comp claim should review the personnel file with pri-
vate legal counsel before taking that final step.
Which brings us to the Texas Unemployment Compen-
sation Act (TUCA). The TUCA does not, in and of itself,
prohibit the termination of any employee for any rea-
son. However, if the business fires an employee who
later files a claim for unemployment benefits, the Texas
Workforce Commission will grant the benefits and
charge the employer's account unless the employer dem-
onstrates that it fired the employee for misconduct. The
TUCA does provide a special exception in the case of a
separation caused by a medically verifiable illness of the
employee or the employee's minor child. In that situa-
tion, the employer's account should not be charged, even
though the former employee will be entitled to benefits.
However, in order to gain this "medical chargeback
protection," the employer should be prepared to dem-
onstrate that the absences or medical restrictions were
so substantial that the replacement of the employee be-
came a business necessity. There are no precedent cases
establishing the minimum length of time an employee
must be out before the employer becomes eligible for
this protection, but absences of less than two or three
weeks rarely meet the standard.
Most businesses are very tolerant of absences due to
genuine illness. However, when an employer notices
that 75%, of an employee's absences are occurring on
Mondays, Fridays, and the first day of deer season, sus-
picions begin to rise. Let's assume for the moment that
the employer has carefully reviewed the laws described
above and come to the following conclusions:
The employee is not protected by the FMLA because:
> the employer is a private business with fewer than 50
employees, or
>the employee has not yet worked 12 months and 1250
hours, orSpring2000
CHRONIC ABSENTEEISM continued
> the employee is not taking time off for one of the
protected reasons, i.e., birth or adoption of a child,
the serious health condition of the employee, or the
serious health condition of'a member of the immedi-
ate family.
The employee is not protected by the ADA because:
>the employer is a private business with fewer than 15
employees, or
>the employee does not fit into a protected class be-
cause he does not have a physical or mental im-
pairment that substantially limits one or more
major life activities, he has no record of such an
impairment, the employer does not otherwise re-
gard the employee as impaired, and the employee
is not associated with the disabled.
" The employee is not protected by the PDA because:
> the employer is a private business with fewer than
15 employees, or
> the employee is not pregnant or suffering from
medical problems related to pregnancy.
The employee is not protected by the TWCA because:
> the employer is a non-subscriber to workers'
compensation, or
> the employee has not alleged any on-the-job
injuries or become involved in others' workers'
compensation claims.
Assuming an employer finds all the above to be true, he
is in a much better position to directly address the is-
sue. At this point, management can sit down with the
employee in a formal counseling session and point out
that his absenteeism has become excessive and that his
pattern of taking off Mondays and Fridays has raised
concerns that he is using sick leave for "mental health"
days instead oflegitimate illnesses. The employer should
inform the employee that, in the future, the employee
must provide a note from a health care provider upon
his return substantiating that each and every day of ab-
sence was due to the illness of the employee or his mi-
nor child. All absences for personal reasons must be
submitted for approval at least one week in advance,
and management reserves the right to deny those re-
quests. The business should also take this opportunity
to reinforce other aspects of its attendance policy, such
as call-in requirements. Finally, management should
specifically warn the employee that his job is in danger,
and that failure to comply with these requirements can
lead to termination. All of these items should be listed
in a written warning to the employee.13
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Texas Workforce Commission. Office of the Commissioner Representing Employers. Texas Business Today, Spring 2000, periodical, Spring 2000; Austin, Texas. (https://texashistory.unt.edu/ark:/67531/metapth1624079/m1/13/?rotate=90: accessed July 17, 2024), University of North Texas Libraries, The Portal to Texas History, https://texashistory.unt.edu; crediting UNT Libraries Government Documents Department.