How to Handle an Employee Who Calls in Sick Too Often

Handling an employee who calls in sick too often starts with a legal check, not a disciplinary one. Before you write anyone up for attendance, work out whether the absences are protected by the Family and Medical Leave Act, the Americans with Disabilities Act, the Pregnant Workers Fairness Act, a state paid-sick-leave law, or workers’ compensation. Once you know which absences you can actually count, the rest is documentation and consistent progressive discipline.

Screen the Absences for Legal Protection First

Several federal protections can apply to the same employee at once, so check each one before you count a single absence against them.

FMLA

The FMLA gives eligible employees up to 12 workweeks of unpaid leave in a 12-month period for their own serious health condition or to care for a spouse, child, or parent with one. An employee qualifies if they have worked for you for at least 12 months and logged at least 1,250 hours of service in the previous 12 months.¹ The leave can be taken all at once or intermittently, which is what tends to trip up managers: an employee with a chronic condition may call in for a single day at a time, and each of those days can count as protected leave. You cannot discipline someone for absences that fall within their FMLA entitlement.

ADA

The ADA applies to employers with 15 or more employees and requires reasonable accommodations for qualified employees with disabilities. A modified attendance policy or additional leave can itself be a reasonable accommodation.² If the pattern looks tied to a medical condition, you owe the employee an interactive conversation before discipline. The ADA does not, however, require you to accept indefinite leave or completely unpredictable attendance that keeps the employee from performing core duties.³

Pregnancy

The Pregnant Workers Fairness Act requires employers with 15 or more employees to provide reasonable accommodations for limitations related to pregnancy, childbirth, or related medical conditions, and leave can be one of those accommodations.⁴ You also cannot force a pregnant employee onto leave when a different accommodation would let them keep working. If the absences you’re seeing line up with pregnancy or a recent birth, talk about accommodations before you think about discipline.

State Sick Leave and Workers’ Comp

A growing number of states and localities require paid sick leave, generally in the range of 24 to 56 hours per year. Most of these laws prohibit disciplining an employee for using accrued sick time for a qualifying reason, so if the employee still has hours in the bank, those absences typically cannot be counted against them.

Workers’ comp is a separate trap. Virtually every state prohibits firing or disciplining an employee for filing a workers’ compensation claim or missing work to recover from a workplace injury. Counting workers’ comp time as an attendance violation is one of the fastest routes to a retaliation lawsuit.

Document Every Absence Before You Do Anything Else

Once you know which absences you can lawfully count, start building an objective record. Good documentation is both your legal shield and the raw material for any conversation you have later with the employee.

The date and time of each absence, when the employee was scheduled, when (or whether) they called in, and how long they were out.
The reason the employee gave when they called in, in their own words. No diagnosis is needed at this stage.
The impact on operations: shifted workloads, missed deadlines, customer complaints, overtime costs.
Any informal conversations you’ve already had about attendance, with dates and the employee’s response.

Keep the entries in a dedicated attendance log or the personnel file. Stick to observable facts. Leave out any speculation about whether the employee is “really” sick. A clean log will either support discipline for unprotected absences or help you see that the absences are protected and need a different response.

Engage the Interactive Process If a Disability May Be in Play

If the absences look connected to a disability, or the employee tells you they have one, you have to engage in what the EEOC calls the interactive process. It is a real conversation about accommodations, not a form to sign.

Start by identifying the essential functions of the job. Talk with the employee about how their condition affects their ability to perform those functions and what might help. Then evaluate the options against what your organization can feasibly provide. Common attendance-related accommodations include a modified schedule, permission to work from home on flare-up days, or a defined block of additional leave beyond your standard policy.⁵

You are not required to eliminate an essential function, accept completely unpredictable attendance, or grant open-ended leave with no estimated return date.³ If no reasonable accommodation would let the employee reliably do the job without undue hardship, you can move ahead with discipline or separation. Document every step: what was proposed, what was tried, and why it did or did not work.

Timing matters. The EEOC has said you can proceed with discipline for attendance problems that happened before the employee requested an accommodation, and you are not required to reverse discipline already issued because the employee later discloses a disability.³ Once the request is on the table, though, further discipline has to pause while you work through the process.

Request FMLA Medical Certification When the Leave Looks Covered

When absences may qualify for FMLA leave, you can require medical certification from the employee’s healthcare provider. The Department of Labor publishes an optional form for this purpose.⁶

A complete certification covers the approximate start date and expected duration of the condition, medical facts sufficient to support the need for leave, whether the employee can perform essential job functions, and, for intermittent leave, an estimate of how often and how long the absences will be.⁷ It does not need to include a specific diagnosis. The focus is on functional limits and expected duration.

The employee has 15 calendar days after your request to return the certification. If it comes back incomplete or insufficient, you must tell them in writing exactly what is missing and give them seven calendar days to fix it. Failure to cure lets you deny the request.⁸ After any cure, you can contact the provider to clarify handwriting or a response, but only through HR, a leave administrator, or a management official; the employee’s direct supervisor may never contact the healthcare provider.⁹ If you doubt the certification itself, you can require a second opinion from a provider you choose, at your expense.¹

For chronic conditions, you can request recertification, but not too often: the general rule is no more than every 30 days and only in connection with an actual absence. If the original certification lists a minimum duration longer than 30 days, you wait until that period runs. Either way, you can ask for recertification at least every six months, and sooner if the employee asks to extend leave, the circumstances change significantly, or something casts doubt on the stated reason.¹⁰

Know the Limits on Medical Inquiries Outside FMLA

Outside the FMLA certification process, the ADA restricts what medical information you can demand. You cannot require a medical examination or ask whether an employee has a disability unless the inquiry is job-related and consistent with business necessity.² You need a reasonable basis to believe a medical condition is affecting the employee’s work before you can demand documentation. A blanket doctor’s-note requirement applied selectively to certain employees creates risk on its own.

When medical information does come in, whether through FMLA or an accommodation request, keep it in a separate, confidential medical file rather than the general personnel folder. Supervisors should receive only what they need about work restrictions and accommodations, not diagnostic details.

Move Through Progressive Discipline for the Unprotected Absences

Absences that don’t qualify for any protection can be addressed through your normal disciplinary process. Escalating consequences over time builds a defensible record and gives the employee a real chance to correct course.

Verbal Warning

Start with a private conversation. Tell the employee you have noticed the pattern, share the specific dates and frequency from your log, and explain how the absences are affecting the team. Document the conversation even though it is informal: date, what was said, any commitments the employee made.

Written Warning

If the pattern continues, issue a written warning that lists the unexcused absence dates, references the earlier conversation, identifies the attendance policy being violated, and states clearly what will happen if things don’t change. Ask the employee to sign an acknowledgment. If they refuse, note the refusal on the document in front of a witness and file it immediately.

Performance Improvement Plan

When warnings haven’t produced results, a formal performance improvement plan gives the employee a structured timeframe, typically 30 to 90 days, to bring attendance into compliance. For an established pattern of absences, the 90-day end of that range gives you enough data to see whether the problem is really fixed.

The plan should identify the specific deficiencies and reference prior warnings, set measurable standards (something like “no more than one unscheduled absence per month” or “must call in at least one hour before shift start”), describe any support you’re offering such as access to an employee assistance program or a temporary schedule adjustment, state clearly that failure to meet the standards could result in further discipline up to and including termination, and set exact start and end dates. Both the supervisor and the employee should sign the plan, and refusals to sign should be witnessed and noted.

Formal Disciplinary Meeting

If the PIP fails, the next step is a formal meeting that puts the employee on notice of possible termination. Bring your full documentation: the attendance log, prior warnings, the PIP and its results, and any relevant correspondence. Stick to dates, frequency, and business impact. Give the employee an opportunity to respond. If they disclose a medical condition or another protected reason that was not previously on the table, you may need to pause and re-run the protection analysis. If the absences are clearly unprotected and no new information changes the picture, explain the specific consequences and the timeline for a final decision. Document who was present, what was discussed, and the response, and file it with the rest of the attendance history.

Guard Against Retaliation Claims

Even discipline that’s justified on the merits can be challenged as retaliation if the employee has engaged in any protected activity, such as filing a discrimination complaint, requesting an ADA accommodation, or taking FMLA leave. A retaliation claim requires the employee to show protected activity, a materially adverse action, and a connection between the two.¹¹

Facts that hurt your position include suspicious timing (discipline right after a complaint or leave request), evidence that you scrutinized this employee’s attendance more closely than others without justification, and other employees with similar records who were treated less harshly.¹¹

The strongest defense is consistency. Apply the same policy and the same progressive steps to every employee, document each step the same way, and make decisions off the same thresholds. Taking FMLA leave or requesting an accommodation does not immunize an employee from discipline for genuinely poor performance, but selective enforcement after someone exercises a protected right is exactly the pattern that supports a retaliation finding.

Fitness-for-Duty Certification Before Return

If an employee takes a continuous block of FMLA leave for their own serious health condition, you can require a fitness-for-duty certification before allowing them back, provided you have a uniformly applied policy requiring this of all employees in similar situations. The certification must come from the employee’s own healthcare provider and confirm the employee is able to resume work.¹²

You can ask the certification to address specific essential functions, but only if you gave the employee a list of those functions with the original leave designation notice. You may contact the provider for clarification, but you cannot require a second or third opinion on a fitness-for-duty certification, and you cannot delay the employee’s return while seeking clarification.¹²

If Termination Becomes Necessary

Unemployment

Firing an employee for excessive unexcused absences doesn’t automatically end their eligibility for unemployment benefits. Most states define disqualifying misconduct as willful or deliberate disregard of the employer’s reasonable expectations, and a pattern of unexcused absences after warnings can meet that standard. Absences caused by genuine illness, especially when the employee followed call-in procedures, often do not qualify as misconduct, and the former employee may still collect benefits. Your documentation drives the result. Progressive discipline, written warnings, and continued unexcused absences push the analysis toward willfulness; thin or inconsistent records push it the other way.

Final Pay

Federal law does not require you to hand over a final paycheck immediately upon discharge.¹³ Many states do impose their own deadlines, from the day of termination to within several business days. Your state’s payday law controls, and missing the deadline can trigger waiting-time penalties.¹⁴ The final check must include all hours worked through the last day at the regular rate. In many states, accrued but unused vacation or PTO is treated as earned wages and has to be paid out, though this varies by jurisdiction and sometimes by your own written policy. Provide a detailed pay stub. Getting the amount and the timing right prevents a straightforward termination from turning into a wage claim.

1
Office of the Law Revision Counsel. 29 USC Chapter 28 – Family and Medical Leave
2
Office of the Law Revision Counsel. 42 USC Chapter 126 – Equal Opportunity for Individuals With Disabilities
3
U.S. Equal Employment Opportunity Commission. Applying Performance and Conduct Standards to Employees With Disabilities
4
U.S. Equal Employment Opportunity Commission. What You Should Know About the Pregnant Workers Fairness Act
5
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Reasonable Accommodation and Undue Hardship Under the ADA
6
U.S. Department of Labor. Certification of Health Care Provider for Employees Serious Health Condition Under the Family and Medical Leave Act
7
eCFR. 29 CFR 825.306 – Content of Medical Certification for Leave Taken Because of an Employees Own Serious Health Condition or the Serious Health Condition of a Family Member
8
eCFR. 29 CFR 825.305 – Certification, General Rule
9
eCFR. 29 CFR 825.307 – Authentication and Clarification of Medical Certification
10
eCFR. 29 CFR 825.308 – Recertifications for Leave Taken Because of an Employees Own Serious Health Condition or the Serious Health Condition of a Family Member
11
U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Retaliation and Related Issues
12
eCFR. 29 CFR 825.312 – Fitness-for-Duty Certification
13
U.S. Department of Labor. Last Paycheck
14
U.S. Department of Labor. Handy Reference Guide to the Fair Labor Standards Act