QUERY: This week, a question for you.

QUESTION:

Nicolas has been a full-time employee with your company for three years. Although he is a good employee and had perfect attendance his first two years, he used up all his vacation and missed several additional days of work during the past year because of a domestic dispute with his ex-wife. He is now one occurrence away from being terminated for absenteeism.

Nicolas comes to you and asks whether he can take two days off. He says that his father, who lives in France, is having cardiac surgery. Although Nicolas cannot afford to go to France to be with his father, he wants to stay by his telephone at his U.S. home to be available for him.

You would like to keep Nicolas, but you have to follow your attendance policy. Is there any way Nicolas can have the time off and remain employed?

ANSWER:

Yes. Nicolas’s time off arguably qualifies as a legitimate absence covered under the Family and Medical Leave Act ("FMLA"). His father’s surgery qualifies as a "serious health condition" of a "spouse, parent or child." And leave is available if the employee is "needed to care for" the parent, including providing psychological comfort and reassurance. Nicolas’s availability by telephone is arguably a way of providing this to his father. Thus, if Nicolas can produce a medical certification from his father’s doctor, you can excuse the absence without violating your attendance policy. (Another alternative would be to grant him a non-FMLA, no-penalty leave of absence if your policy allows you to do so under these circumstances.)