Managing Employee
Absences in a
Regulatory
Thicket
No
By LISA KRUPICKA
employer denies that excessive employee absences
impact morale. However, many employers have given up
Multiple Methods Exist for Reducing
Employee Absenteeism; One Size Does Not
Fit All
on any attempt to minimize such absences because of
increase costs, reduce productivity and negatively
the confusing network of laws that make administration
of many absence control methods too complex, burdensome and/or costly
to take on. This article recommends strategies for tracking and controlling
absenteeism while remaining in compliance with the law.
Have a Formal Written Attendance Policy
You cannot communicate employer expectations about attendance, or take any action
to control time missed, without a written policy. Attendance includes missing full days
of work, coming in late and leaving early. An attendance policy should apply to all
employees, not just non-exempt ones. Many employers are tempted to give exempt
employees less scrutiny when it comes to tracking absences on the theory that their
classification assumes that they are working at a high level and can be trusted to work
as long as it takes to get the job done when, in fact, exempt employees, who are paid
regardless of how many hours they work in a work week, can be the worst offenders
when it comes to excessive absenteeism, especially when it involves coming in late,
taking long lunches and leaving early. A written attendance policy makes it more likely
that attendance expectations will be communicated and enforced uniformly across an
organization, thus minimizing the likelihood of claims of discrimination or favoritism.
•The “NO-FAULT” OR “NEUTRAL” ABSENCE
CONTROL POLICY – this policy counts every
absence, regardless of the reason, and calls for termination once a certain number of absences have been
incurred. Courts have held that uniform, mechanical
application of such a policy is a defense to claims of
worker’s compensation retaliation.
•The “OCCURRENCE-BASED” POLICY – this
policy defines an “occurrence” in terms of a single or
multiple days missed on account of a single event or
illness. Employees who have occurrences are subject
to progressive discipline after certain targets are met,
culminating in termination. This method has the
advantage of being clear, objective and encouraging
uniform enforcement.
•The “CARROT AND STICK” POLICY – this policy
has some punitive component but also a reward-based
component. Examples include awarding a bonus for
good attendance over a certain period or allowing
employees to “sell back” unused sick days at the end of
the year.
Accurately Tracking Attendance Is Essential
A written attendance policy will be of little use if an employer cannot accurately track
the dates and number of times an employee has been absent. Methods can be low-tech,
such as paper time sheets and time cards, medium-tech, such as third party software, or
high-tech, such as an integrated HR information system (HRIS). Remember, though,
that the most sophisticated computer program will not help an employer if its time
keepers are not trained to make sure absences are reported to the person or persons who
input the time into the system. It is important for an employer to identify all employees
with time-keeping responsibilities, including direct supervisors, department heads, and
human resources or finance, and train them to report attendance events promptly. An
employer’s worst nightmare is to find out that an employee has been out for two weeks
for surgery and his supervisor did not inform HR. Accurate tracking is also essential
because, in our experience, the employees with the worst attendance records often have
unusually detailed memories regarding their attendance (and excuses for absences, etc.)
after they have filed suit.
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•The “DON’T BE ABSENT” POLICY – this policy
does not quantify what constitutes “excessive” absenteeism, but does make it the subject of discipline.
This policy may be used by smaller employers that do
not have the resources to administer a more targeted
absence-control policy. An employer that implements
such a policy, however, should be careful to apply it in
an even-handed manner.
Be Mindful of Legal Constraints
Regardless of the practical pluses and minuses of each of
these policies in terms of achieving a reduction in employee
absenteeism, a number of federal laws combine and intersect
to make major aspects of any absence control policy compli-
cated. The Family and Medical Leave Act (FMLA), the Americans with
Disabilities Act (ADA), and even Title VII must be kept in mind when
administering an absence control policy.
FAMILY AND MEDICAL LEAVE ACT. Because this statute
requires employers to give employees unpaid job-protected leave for
certain events, including the employee’s own serious health condition and
the serious health condition of an immediate family member, employers
must carve out these absences from any absence control policy. It
therefore remains imperative for employers subject to the FMLA to track
employee absences accurately, both to avoid counting them for purposes
of an absence control policy, to make sure the proper documentation is
maintained, and to make sure employees are given all the leave to which
they are entitled.
AMERICANS WITH DISABILITIES ACT. This statute may be
the death knell of the neutral absence control policy, especially after the
passage of the ADA Amendments Act. The ADA requires employers to
offer a reasonable accommodation to employees who have disabilities,
which now encompasses a huge number of conditions. Such an accommodation could include an unspecified amount of additional leave above
and beyond the FMLA limits. When the definition of disability was more
limited, employers had at least a chance of administering a neutral absence
control policy without violating the Act, since there were more bright line
rules: a disability did not include temporary conditions, those that did not
impact an employee’s ability to participate in the activities of daily living,
or those that could be corrected with medication or medical devices. By
broadly expanding the definition of disability to include virtually any
medical condition, regardless of whether it can be corrected, is temporary,
or affects an employee’s life in any significant way, it will be difficult, if
not impossible, to administer the policy in a way that gives employers a
complete defense to worker’s compensation retaliation claims without at
the same time exposing employers to liability under the ADA. Although
most federal courts have held that regular attendance is an essential
function of many jobs, there are always exceptions and employers must
remain aware of the ADA when administering any absence control policy.
TITLE VII. Absence control policies that are subjective, such as the
“Don’t Be Absent” Policy, are most likely to trigger claims of discrimination. Without any clear guideline about how many absences are
excessive, the decision to discipline employees is left to the discretion of
an individual supervisor. The more arbitrary the administration of the
policy, the more likely it is that someone in a protected category will claim
to have been more harshly treated than someone outside the protected
category. In the absence of objective standards, the disfavored employee
can argue that the harsher treatment he received is on account of discrimination, even if such treatment was actually the product of carelessness or
poor record-keeping. There is also the potential for an employee relations
disaster even where employees in protected categories are not involved. If
the supervisor of the administrative office of a company thinks that there
is no excuse to miss work unless an employees is in the hospital or dead,
but the supervisor of the maintenance department is a pushover for any
excuse to miss work, employee morale is bound to be affected negatively.
Despite the above constraints, employers that are genuinely committed to
controlling employee absences can navigate this complex network of laws
through objective standards, careful record-keeping, the proper training
of supervisors, well-defined exceptions, and the occasional advice of a
good lawyer.
Lisa Krupicka, Attorney
Burch, Porter & Johnson, PLLC
[email protected]
www.bpjlaw.com
www.HRProfessionalsMagazine.com
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