Can My Employer Fire Me for Attendance Problems After a Workers Compensation Injury in Alabama?

Can My Employer Fire Me for Attendance Problems After a Workers Compensation Injury in Alabama?

An Alabama worker suffers an on-the-job injury.  Their authorized treating physician takes the employee off work. Later, the employee returns with restrictions. There are follow-up appointments, physical therapy visits, perhaps surgery, and additional missed time.

Then the employer says “You have missed too much work. You are fired.”

Can an Alabama employer do that?

The answer is sometimes—but the fact that the employer calls the termination an “attendance issue” does not necessarily end the inquiry.

An employer generally can enforce a legitimate attendance policy, even against an employee who has suffered a workplace injury, but under Ala. Code § 25-5-11.1, an employer cannot terminate an employee solely because the employee sought workers’ compensation benefits.

When “attendance” is given as the reason for firing an injured worker, an important question therefore becomes: Was attendance really the reason for the termination—or was the attendance policy being used as a reason to get rid of an employee because of the workers’ compensation claim?

Alabama’s retaliatory discharge cases give us a framework for answering that question.

Filing a Workers’ Compensation Claim Does Not Give an Employee Immunity From Attendance Rules

This point should be clear from the beginning.  An employee who suffers a job injury does not become immune from legitimate workplace rules.  If an employer has a lawful attendance policy and applies that policy consistently, a workers’ compensation claim does not necessarily prevent the employer from enforcing it.

The Alabama Supreme Court’s decision in Alabama Power Co. v. Aldridge, 854 So. 2d 554 (Ala. 2002), illustrates the point.

Alabama Power identified several reasons for Aldridge’s termination, including alleged misrepresentations, failure to report absences properly, and failure to maintain regular attendance. The employer produced evidence that Aldridge had missed 32 days during a relatively short period and that its attendance policy was applied to him in the same manner as to other employees. The Alabama Supreme Court ultimately concluded that the employer was entitled to judgment as a matter of law.

So, an attendance problem can be a legitimate defense to a retaliatory discharge claim; but Aldridge also tells us how that defense should be examined.

Recommended Reading: The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun

Aldridge identifies several types of circumstantial evidence that may help establish whether the stated reason for termination was legitimate or whether the workers’ compensation claim was actually responsible for the discharge.

Start With the Actual Attendance Policy

If an employer says: “We fired you under our attendance policy,” one of the first things we want to see is: The attendance policy.

Not someone’s description of it.  Not what a supervisor remembers it saying-the actual policy in effect when the employee was terminated.

Then we need to understand it.

Does the policy use an attendance-point system?  Which absences generate points?  Are excused and unexcused absences treated differently?  What notice must an employee provide?  Does the policy contain progressive discipline?  Does management have discretion?

And perhaps most importantly: Does the policy actually require termination under the circumstances the employer says required it?

Those questions matter because Aldridge identifies failure to adhere to established company policy as one of the circumstances that can support an inference of retaliatory discharge.

An employer’s attendance policy can be evidence for the employer-but if the employer does not follow it, the same policy can potentially become evidence for the employee.

Were the Absences Related to the Work Injury?

We also need to know exactly why the employee was absent.

There can be an enormous difference between an unexplained absence and an absence resulting from an authorized treating physician taking an injured employee off work.

An attendance record might simply show:

ABSENT — Tuesday
ABSENT — Wednesday
ABSENT — Thursday

But the workers’ compensation records might tell us:

Tuesday — authorized orthopedic appointment
Wednesday — surgery
Thursday — physician ordered employee off work

Those facts do not automatically make a termination unlawful. The terms and application of the employer’s policy still matter, but they certainly make the reason for the absences relevant to evaluating the employer’s explanation.

We would want to determine:

Was the employer notified?

Did the employee provide the required documentation?

Did the authorized physician provide work excuses?

How had the employer previously treated medically excused absences?

Did the company count workers’ compensation treatment against the employee under its policy?

And was that consistent with how the policy was ordinarily applied?

Foster: When a “No-Call, No-Show” Defense Wasn’t the End of the Case

One Alabama Supreme Court case is particularly helpful on this subject.  In Foster v. North American Bus Industries, Inc., 236 So. 3d 70 (Ala. 2017), the employer argued that Foster was terminated under its attendance and absenteeism policy because she had been a “no-call, no-show” for two consecutive days.

On its face, that sounds like a formidable defense.  The employer maintained that the policy required an employee to call a supervisor before the shift each day and that two consecutive no-call/no-show days resulted in termination. It also presented evidence that numerous other employees had been terminated for violating the same policy.  If that were all the evidence, the case might appear straightforward.

It wasn’t.

Foster had suffered an on-the-job injury and had undergone surgery. There was evidence concerning communications with the employer about her medical condition and absences.  The Alabama Supreme Court examined evidence concerning what Foster and her husband had communicated to the employer, what the employer knew about her medical situation, and the employer’s handling of her absences.  The Court concluded that factual disputes existed that prevented summary judgment for the employer.

That makes Foster particularly valuable for injured Alabama workers.

It does not establish that an employee can disregard an attendance or call-in policy merely because an absence is related to a workers’ compensation injury.  Instead, Foster demonstrates why courts may need to examine all the surrounding facts rather than stopping when the employer says: “No-call, no-show.”

Did the Employer Know Why You Were Out?

This can become an important factual issue.  Suppose the employee’s supervisor knows:

• the employee was injured at work;
• surgery has been scheduled;
• the employee is under active workers’ compensation treatment; and
• the physician has taken the employee off work.

The employer later says “We fired her because she didn’t properly tell us why she was absent.”  We need to examine that carefully.

Who knew what?

When did they know it?

What did the employee communicate?

What did the doctor’s office communicate?

Did the workers’ compensation adjuster or nurse case manager communicate with the employer?

What did the company’s policy actually require?

Did the employee comply?

Those questions may determine whether the employer has a legitimate attendance defense or whether there is evidence from which the stated reason could be found pretextual.

Did the Employer Follow Its Own Call-In Procedure?

An employer may have a legitimate rule requiring an employee to call in personally before every missed shift.  If that is the actual policy and the employee simply ignores it, the employer may have a strong defense.

But suppose the evidence shows that employees ordinarily notified one particular supervisor and the injured employee does exactly that.  After the workers’ compensation injury, management suddenly says: “You notified the wrong person.”

Or perhaps the company historically accepted doctor’s excuses without requiring daily calls but insists upon strict daily calls only after this particular employee files workers’ compensation.

Now we need to look more closely.

The issue isn’t whether an employer can have an attendance or call-in policy.  Of course it can.  The issue is whether the policy relied upon for termination was actually the policy, actually violated, and actually applied in the same manner to other employees.

Recommended Reading: What Is Pretext in an Alabama Retaliatory Discharge Case?

An employer’s legitimate-sounding explanation can be tested against its policies, documents, past practices, comparator employees, and the testimony of the people who made the termination decision.

“We Fire Everybody Who Does This”

That may be true, and if it is, it can be powerful evidence for the employer.  Aldridge is a good example. Alabama Power produced evidence that its attendance policy had been applied to Aldridge in the same manner it was applied to other employees.

But the assertion can also be tested.

Suppose the employer says “Anybody with ten attendance points is terminated.”  Then we would want to know what happened to other employees who reached ten points.

Were they fired?

Were some given warnings?

Were points removed?

Were exceptions made?

Was management permitted to exercise discretion?

Were employees who had not filed workers’ compensation claims treated differently?

One of the circumstances identified in Aldridge is discriminatory treatment compared with similarly situated employees.  So when an employer says “We treat everybody the same,” one important question during litigation may be: Do the employer’s own records prove it?

What If the Employer Has a “Neutral” Attendance Policy?

The word “neutral” does not necessarily answer the question either.

A policy may appear completely neutral on paper; for instance: Ten points = termination.

But a neutral written policy can still potentially be applied differently in practice.  Perhaps supervisors regularly exercise discretion.  Perhaps some absences are routinely excused.  Perhaps other employees receive warnings before termination.

If the employer makes those accommodations for other workers but refuses them for the employee pursuing workers’ compensation, that difference may matter.  Again, that does not automatically prove retaliatory discharge, but it may provide evidence relevant to whether the employer’s stated reason was genuine.

What If the Employee Really Did Violate the Policy?

Then we have to confront that fact.  A retaliatory discharge case should not be evaluated by pretending unfavorable evidence doesn’t exist.

Suppose the written policy clearly requires employees to call a supervisor at least 30 minutes before every shift.  The employee knew the policy.  The employee was physically capable of calling.  The employee missed two consecutive shifts.  No one contacted the employer.

Other employees who committed the same violation were routinely fired, and the policy expressly provides for termination.

Those facts may create a very strong legitimate reason for discharge.

Remember what the Alabama Supreme Court said in Aldridge: an employer’s stated reason can be sufficient as a matter of law when the underlying facts are undisputed and there is no substantial evidence that the reason was applied discriminatorily, conflicts with express company policy, or has otherwise been shown to be pretextual.

The workers’ compensation claim does not erase legitimate misconduct.

But What If the Employer Helped Create the Attendance Problem?

There are also cases where the factual situation is considerably more complicated.  Suppose an employee is under restrictions from the authorized treating physician.  The employer says it can accommodate those restrictions. The employee reports to work but contends the assigned duties exceed the restrictions.

Or there is confusion over whether the employer actually has suitable work available.

Or the treating physician changes the employee’s work status after communications concerning available work.

Then the employer later characterizes the resulting absence as an attendance problem.

That situation requires much closer examination.  We would want to determine:

What restrictions did the physician actually impose?

What job did the employer offer?

Did the offered job comply with the medical restrictions?

Did the employee refuse suitable work—or was suitable work actually unavailable?

And when did the employer begin treating the resulting absence as a disciplinary matter?

Sometimes an employer characterizes a dispute as an “attendance problem” when the real dispute is whether the injured employee was capable of performing the work the employer supposedly offered, and that distinction matters.

Under Ala. Code § 25-5-57(a)(3)e., an injured employee who refuses employment suitable to his or her capacity may lose compensation during the period of refusal, unless the refusal is found to be justifiable.

The important phrase is: “suitable to his or her capacity.”

An employer cannot necessarily solve the issue merely by saying “We have light duty. Come back to work.”  Questions which should be asked may include:

• What specific job was offered?
• What were the actual duties?
• Did those duties comply with the authorized treating physician’s restrictions?
• Was the employee physically capable of getting to and performing the job?
• Was the offer definite, or was the employer simply saying it would “find something” for the employee to do?
• Did the employee have a legitimate reason to question whether the work was medically appropriate?

Those issues can matter both in the workers’ compensation claim and in a later retaliatory discharge case.  If the employer treats a disputed return-to-work situation as simple “absenteeism,” the circumstances deserve careful examination.

The employer may have a legitimate defense if suitable employment was actually offered and the employee simply refused to perform it, but the analysis is different if the employer never identifies a real job within the employee’s restrictions and then fires the employee for failing to report.

In Fab Arc Steel Supply, Inc. v. Dodd, 168 So. 3d 1244 (Ala. Civ. App. 2015), the Court of Civil Appeals upheld an award of temporary total disability benefits after the employee’s termination where the employee remained under significant physical restrictions and the employer did not establish the availability of regular employment within his vocational profile.

The practical point is: “You didn’t come to work” and “you refused suitable employment” are not necessarily the same thing.

And where the underlying dispute concerns whether the work offered was actually suitable to the employee’s medical capacity, that distinction may be important in evaluating whether an “attendance” termination was legitimate or pretextual.

The label “attendance” cannot substitute for examining what actually happened.

Attendance and Physical Ability to Work Are Not Exactly the Same Issue

There is another important distinction in Alabama retaliatory discharge law.  Historically, employers argued that an employee had to prove that he or she was “willing and able” to return to work as part of the employee’s prima facie retaliatory discharge case, but The Alabama Supreme Court rejected that requirement in Bleier v. Wellington Sears Co., 757 So. 2d 1163 (Ala. 2000).  Here, the Court held that willingness and ability to return to work are not elements of the employee’s prima facie case. The employee’s physical ability can still be relevant to the employer’s defense and to damages, but it does not prevent the employee from establishing the initial retaliatory-discharge case merely because the employee cannot return to the former job.

This distinction becomes extremely important when employers blur together two different arguments: “You were absent” and “You were physically unable to perform the job.”

Those are not necessarily the same defense.

Recommended Reading: Do I Have to Be Able to Return to Work to Bring an Alabama Retaliatory Discharge Claim?  We will devote a separate article to Bleier and the “willing and able” defense because this issue has produced significant Alabama appellate litigation—and because the answer can be particularly important when the underlying workers’ compensation injury is serious.

What Evidence Should Be Examined in an Attendance Case?

When an employer relies on attendance to justify termination after a workers’ compensation injury, the evidence we want may include:

• the attendance policy in effect at the time;
• the employee handbook;
• attendance-point records;
• timecards;
• call-in records;
• emails and text messages;
• doctor’s excuses;
• authorized treating physician restrictions;
• medical appointment records;
• disciplinary notices;
• prior performance evaluations;
• communications with supervisors and human resources;
• documents identifying who made the termination decision; and
• records showing how comparable attendance violations involving other employees were handled.

We also want a chronology.

When was the employee injured?

When did the employer learn about it?

When did treatment begin?

Which absences were related to treatment?

When were restrictions imposed?

When did attendance become an alleged problem?

When was discipline imposed?

And when was the employee terminated?

Recommended Reading: How Important Is Timing in an Alabama Retaliatory Discharge Claim?

Timing alone generally does not establish retaliatory discharge, but the chronology can become considerably more persuasive when combined with other evidence of causation or pretext.

Attendance Cases Often Come Down to the Details

Consider two employees.

Employee One files workers’ compensation, later repeatedly misses work for reasons unrelated to the injury, ignores the employer’s established call-in policy, and is terminated under a policy consistently enforced against everyone.

Employee Two files workers’ compensation, misses work for authorized medical treatment, keeps the employer informed, and is suddenly terminated under an attendance policy that the employer does not normally enforce against similarly situated employees.

Both termination notices may say “Attendance,” but those may be two very different retaliatory discharge cases.

That is why the label on the termination notice does not decide the issue.

An Attendance Policy Can Be a Defense—or Evidence of Pretext

An employer in Alabama does not lose its ability to enforce legitimate attendance requirements merely because an employee has suffered a workplace injury or pursued workers’ compensation benefits, but Ala. Code § 25-5-11.1 also does not allow an employer to use an attendance policy as camouflage for terminating an employee because the employee sought workers’ compensation benefits.

The difference often lies in the evidence.

Aldridge shows how a consistently applied attendance policy and undisputed legitimate reasons can defeat a retaliatory discharge claim.

Foster shows why an employer’s reliance on a no-call/no-show policy does not necessarily resolve the case when substantial evidence creates factual disputes about the circumstances surrounding the absences and termination.

And Bleier reminds us that an injured employee’s ability to return to work is not itself an element of the prima facie retaliatory discharge case.

So if an injured worker is told “You were fired because you missed too much work,” the next question should be: “What does the evidence show about those absences and why I was really fired?”

If you have suffered a job injury, were subsequently fired and you have questions about your rights and benefits under Alabama’s workers compensation laws -don’t hesitate to contact and speak with one of the experienced Alabama Workers Compensation and Social Security Disability attorneys at Powell and Denny today for a free consultation. Appointments are available in person, or virtually via Zoom if more convenient.  Powell and Denny would appreciate the opportunity to help.  And remember, there is no fee unless you win.

Powell and Denny: We Work When You Can’t