What do you do if an employee of your dental, medical, optometry, or veterinary practice ghosts you? Say, one day, they don’t show up for work on a day they are supposed to be there, and they haven't given you any advance notice, and they don’t contact you while they are out. It’s a mystery why they didn’t come in. If this goes on for several consecutive days, it’s known as job abandonment or “no show, no call.”
You might be tempted to fire an employee who abandons their job, and that may be something you can do -- but you have to be careful. In some cases, employees who abandon their jobs may be protected by federal or state law and could potentially sue you for wrongful termination.
There are two types of no-show, no-call situations.
Some employees may have no intention of ever coming back to the job. They may have found another job, or they may feel like they can’t meet the job responsibilities. They have made a decision to quit but, for whatever reason, don’t give notice and don’t contact you after they stop showing up. Maybe they are scared or embarrassed to quit face-to-face, maybe they don’t know about the practice’s policies, maybe they just don’t care, or maybe it’s for a reason known only to them.
Other employees, though, don’t contact you because they can’t. They are involved in some situation outside of their control, such as a medical emergency, natural disaster, personal crisis, or incarceration. These are the employees you need to be careful about terminating, especially if a medical emergency may be involved. These employees may be protected by federal or state laws.
As a best practice, you should attempt to contact the missing employee and try to find out why they didn’t show up. Document your contact attempts, and don’t rush into firing them without first giving them a chance to respond. You might want to consult an employment law attorney before making any final decisions on their employment status.
In almost all states, including California, employment is at-will. That means that unless you have an employment contract, you can fire an employee for any reason or for no reason, as long as it's not for a reason that is illegal or discriminatory.
There are no federal or state statutes that specifically define job abandonment. You, as the employer, need to create your own rules on job abandonment that will apply to the employees in your practice. For example, you get to set the policy on how many no-show, no-call days constitute job abandonment.
However, other federal or state laws may come into play when you terminate an employee for job abandonment. Also, some states have case law that can affect whether the termination is lawful. You should be careful not to violate, or even appear to violate any applicable laws. You should also be careful not to violate any of your practice’s own employment policies.
An employee might be protected by paid sick leave, family or medical leave, or school or child care leave. If an employee doesn't show up because they have a medical emergency, then firing them might violate the federal Family and Medical Leave Act (FMLA) or the California Family Rights Act (CFRA). Note that while the FMLA only applies to employers that have 50 or more employees, the CFRA, as of January 1, 2021, applies to employers in California who have as few as five employees.
In California, there is also case law that indicates that employees who are terminated because they didn’t show up, but who claim medical necessity, have a right to sue their employers for unlawful retaliation in violation of the CFRA. Also, in this case, while the employer claimed the employee had never notified them about her need for additional medical leave, the employee claims she did email her employer.
For all these reasons, you should not make a rash decision to terminate a no-show, no-call employee.
An important step to take to protect yourself from wrongful termination claims is to create a job abandonment policy. Ideally, you should have an employee handbook or manual, and this policy should be included. Employees should sign and date a form indicating they received, read, and understood the handbook, and they should acknowledge any updates in policies in the same way.
The policy should include:
The employment law attorneys at Dental & Medical Counsel have extensive experience creating employee policies for healthcare practices. We can help ensure that your employee handbook or manual covers everything that is essential to protect you from potential claims and lawsuits.
By following these best practices, you will reduce the risk of being the target of wrongful termination claims or litigation for terminating employees who abandoned their jobs:
It’s less common for a practice’s associate doctor, dentist, veterinarian, or optometrist to abandon their job than it would be for other employees, such as dental assistants, receptionists, vet techs, or optical assistants. If it does happen, you and your associates will be bound by the terms of the associates’ employment contracts. The terms of the contract will override the general rule of at-will employment.
Independent contractors are also bound by the terms of their contracts, although these are not employment contracts because the contractors are not employees. Contractors dictate their own schedules so, normally, the concept of job abandonment will not apply unless it involves a breach of contract. Trying to control a contractor’s schedule creates the risk that the contractor will claim misclassification.
At Dental & Medical Counsel, we work exclusively with medical, dental, optometry, and veterinary practices. We know your legal needs. We are available to help you create and implement job abandonment and other employee policies to ensure that you are taking all reasonable steps to prevent and defend yourself against employee lawsuits and claims.
We are also available to help you in the event that an employee is a no-show, no-call, or abandons their job. We can advise you on the best way to handle the situation and ensure you are not making yourself vulnerable by violating any state or federal laws.
Contact us for a free consultation with employment law attorney Ali Oromchian.
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