Firing an Employee for Repeated Absences

My question involves labor and employment law for the state of: Michigan. I have an employee who has called off for 43 days between 1/1/12 and 4/15/12. She began to call off more when she was informed by our physician/owner that her clothing was inappropriate. I have three doctors notes from her personal physician stating the days she is off but there is no reason given, no advance notice. She just stops in, or hands me a note on her way out the door. Can I legally fire this person? To make matters more complicated, her sister and mother work here as well, and I am afraid of being sued if I do fire her. I run a very small office with around 12 employees if that matters. Thanks in advance for any and all advice!

Yes, you can legally fire her. I'm not sure why you might have thought you couldn't - excessive absence is a perfectly legit reason to fire someone. You are too small to qualify under either FMLA or the ADA and even if you weren't (and I think MI has a lower employee floor for the ADA) you have not been given any reason to assume that either applies.

You can fire her.
Anybody can sue but it's hard to prevail.

If the employer is not covered by the FMLA, it would appear you can lawfully terminate an at-will employee for being absent 43 days over two or three months. (By the way, how do you know the days she will be absent between now and April 15, 2012?) This answer presumes there are not additional facts which may implicate another law or a contract here.

In contrast, if the employer is covered by FMLA, it would likely be prudent to have the employee complete the formal FMLA paperwork prior to taking any disciplinary action.

On 3/9/12 she came in and worked for an hour than gave me a note saying she was taking two weeks off (after missing Monday through Wednesday) and would be returning 3/26/12. She came in today and gave me another note from her physician stating she will be off work till 4/16/12. She was originally supposed to return to work Monday (3/26/12).

Doesn't matter. You are too small to qualify under FMLA which means she has no protected medical time under the law. Even if she did, a doctor's note simply saying she will be off work is not enough to certify FMLA. Contrary to popular belief, unless FMLA applies (which it does not) a doctor's note has no force in law.

Thanks so much everyone!

Can I legally fire this person? Not just yes but hell yes.

To make matters more complicated, her sister and mother work here as well, and I am afraid of being sued if I do fire her. There is no basis whatsoever for this soon-to-be-ex-employee to sue you so quit worrying about it. If her mother and sister get in a snit because of the termination, then you need to have a "come to Jesus" discussion with them. On the other hand, they may not much like the way she's chronically absent (likely without much if any reason; doctors' notes are a dime a dozen), particularly if they're having to pick up her slack. They may be wondering what took you so long.

Hah! I like your comment "come to Jesus" talk - my boss uses that phrase often.

This may be a little off topic, but how should I fire her? I would rather not wait till the day she returns to work. But is it appropriate to fire over the phone? Thanks!

As I think cbg (or another responder) sagely observed in another thread, you can terminate an at-will employee with smoke signals if you choose to do so. The method of the communication is generally not determinative.

The smoke signals and carrier pigeon were mine. It was another poster who suggested skywriting. :friendly_wink:

45 days? Boy this employer was certainly forgiving ..

This may be a little off topic, but how should I fire her? I would rather not wait till the day she returns to work. But is it appropriate to fire over the phone? Absolutely. I've done that many times. No reason to wait until she shows up with yet ANOTHER doctor's note. :rolleyes: Just call and tell her she's being terminated because of her chronic absenteeism and that you need someone you can count on to be at work. Don't get into a debate with her, just inform her of the decision and then say goodbye.