Dealing with Job Abandonment: Key Steps to Take

Written by: Jacquelyn Thorp, CEO, MSHR, SPHR, PHRca ?

Question:

What should I do when an employee does not come to work for five days and does not respond to my texts??

Answer:

Here are the steps you should consider:?

1. Review Company Policies: Check your company's policies regarding absenteeism and job abandonment. Most companies have guidelines that define the number of consecutive days an employee can be absent without notice before it's considered job abandonment.?
2. Document the Absence: Keep a record of the employee's absence, including the dates they missed work and any attempts you've made to contact them, such as texts, emails, or phone calls.?
3. Attempt Further Contact: If you haven't already, try reaching out to the employee through other methods, such as a phone call, email, or even a letter to their home address. Clearly state the urgency of the situation and request that they contact you immediately.?
4. Contact Emergency Contacts: If you still cannot reach the employee, consider contacting the emergency contact listed in their personnel file to ensure their well-being.?
5. Investigate the Situation: If the employee is unresponsive, consider if there could be any underlying issues, such as a medical emergency or personal crisis.?
6. Follow Legal Guidelines: Depending on your location, there may be legal considerations when dealing with job abandonment or unapproved absences. Ensure you comply with any relevant labor laws or employment agreements.?
7. Determine Next Steps: If you are unable to reach the employee and they do not return to work, you may need to proceed with termination for job abandonment, in line with your company's policies.?
8. Send a Final Warning: Before making a final decision, send a formal letter or email to the employee, stating that their continued absence and lack of communication may result in termination if they do not contact you within a specified timeframe.?
9. Terminate if Necessary: If the employee does not respond within the timeframe given, you may need to proceed with termination. Ensure you document all steps taken and follow your company's termination procedures.

When dealing with an employee who has been absent without communication for several days, there are several legal risks to consider:?

1. Wrongful Termination?

• Risk: If the employee is terminated without proper documentation or without following company policy, they might claim wrongful termination.?
• Mitigation: Ensure that your actions align with your company’s absenteeism policy and that you have documented all attempts to contact the employee. Make sure the termination is consistent with how similar situations have been handled in the past.?

2. Discrimination Claims

• Risk: If the employee belongs to a protected class (e.g., based on race, gender, age, disability, etc.), they might claim that their termination was due to discrimination.?
• Mitigation: Ensure that the decision to terminate is based solely on the employee's absenteeism and not on any discriminatory factors. Apply policies uniformly across all employees.?

3. Family and Medical Leave Act (FMLA)?

• Risk: If the employee’s absence is due to a serious health condition or other qualifying reason under FMLA (such as caring for a sick family member), they may be entitled to job-protected leave.?
• Mitigation: Before terminating, make reasonable efforts to determine whether the employee’s absence could be related to an FMLA-qualifying condition. If so, follow the required FMLA procedures, such as requesting certification from the employee's healthcare provider.?

4. Americans with Disabilities Act (ADA)?

• Risk: If the employee’s absence is related to a disability, they may be protected under the ADA, which requires employers to provide reasonable accommodations.?
• Mitigation: Investigate whether the absence could be related to a disability. If the employee is entitled to accommodation, work with them to find a solution that allows them to return to work.?

5. Workers' Compensation?

• Risk: If the employee’s absence is due to a work-related injury or illness, they might be entitled to workers' compensation benefits.?
• Mitigation: Determine whether the absence could be related to a workplace injury. If so, ensure that the employee is informed about their rights under workers' compensation laws.?

6. Contractual Obligations?

• Risk: If the employee has an employment contract that outlines specific procedures for handling absences or termination, failing to follow those procedures could lead to a breach of contract claim.?
• Mitigation: Review any employment contracts to ensure compliance with the terms related to absenteeism and termination.?

7. State-Specific Labor Laws?

• Risk: Different states have varying labor laws regarding job abandonment, final paychecks, and termination procedures.?
• Mitigation: Be aware of the state-specific regulations that apply to your business and ensure that your actions comply with them.?

8. Defamation or Retaliation Claims?

• Risk: If the termination is not handled discreetly, the employee might claim defamation. Similarly, if the employee recently filed a complaint or participated in a protected activity, they might allege retaliation.?
• Mitigation: Maintain confidentiality throughout the process and ensure that the termination is unrelated to any protected activities the employee might have engaged in.?

9. Unemployment Benefits?

• Risk: The employee might file for unemployment benefits after termination. If not properly documented, the termination could be challenged, leading to potential benefits being awarded.?
• Mitigation: Clearly document the reasons for termination and be prepared to provide this information if the employee files for unemployment benefits.?

10. Reputational Risk?

• Risk: Mishandling the situation could lead to reputational damage, both internally among other employees and externally if the matter becomes public.?
• Mitigation: Handle the situation professionally and in accordance with best practices to minimize potential damage to the company's reputation.?

In closing, handle the situation in a way that protects your business while ensuring fair treatment of the employee.

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