The HR Specialist

Attendance policies: Control absenteeism without breaking the law

Regular attendance is a key job function for most of your employees. But while you are free to set and enforce attendance rules, you must also comply with key federal laws, including the following:

  • The FMLA requires organizations with 50 or more employees to grant eligible employees up to 12 weeks of unpaid leave for qualifying events such as pregnancy, childbirth, adoption, family illness or personal illness. You cannot use FMLA leave as the basis for any employment actions, including firing, hiring, promotions or discipline. Employers that use “no-fault” attendance policies often find themselves in court because an employee claims that a past absence was in fact FMLA leave.
  • The ADA may require you to suspend or modify your attendance policy to accommodate a disabled worker. And, as with the FMLA, you can’t discipline workers who require ADA leave.

Bottom line: If an employee is absent from work because of circumstances covered under the FMLA or ADA, you can’t discipline him or her for the absence under your regular attendance policy.

What's new  

New FMLA regulations have given employers a little bit of a break. Employees who claim an absence was FMLA leave must identify the condition that caused the leave and the date the employer approved the leave. Calling in sick is not sufficient anymore.

Further, the new regulations allow employers to use information attained while working out an ADA reasonable accommodation or workers’ compensation settlement to make fully informed decisions about which absences are FMLA leave and which are not.

Also, employers now have five business days—not two—from when they receive the employee’s medical certification to rule whether the leave qualifies for FMLA leave.

How to comply  

The best way to manage absenteeism is with a reasonable and specific attendance policy that accommodates your organization’s needs and the functional requirements of various work areas and positions.

A sound attendance policy should cover all of the following: tardiness, illness, personal business, family and medical leave (including military leave) and disability leave.

Be sure to set objective, measurable criteria for when absenteeism will trigger disciplinary action. You may require documentation, such as a doctor’s excuse, to support absences exceeding a certain length, or under certain circumstances.

Right for your company

“No-fault” attendance policies seem like they would be easy to administer. Often they are not. 

Although the FMLA regulations change eases concerns a bit, not knowing why your employee is off work can still cause FMLA problems down the road. Still, for some companies with high turnover—and therefore fewer FMLA-eligible employees—no-fault may be the way to go.

Paid-time-off (PTO) policies,
also known as “paid leave banks,” group all vacation days, holidays, sick days and personal days into one combined bank of days an employee is entitled to be absent from work each year.

Employees who exceed the maximum number of absences may be subject to discipline. Employees who use less than the maximum number of absences may convert the remaining days into cash or carry them over to the next year’s balance.

To decide which system fits best, examine your typical job functions. For positions that deal with the public, for example, coverage during regular business hours is essential. In some cases, other employees may be available to cover for absent workers; in other positions, only one or two people are equipped to manage the work. Building in schedule flexibility helps reduce the impact of unexpected absences.

Record-keeping is key

Make sure you and your supervisors keep accurate records, particularly for hourly employees. Casual or informal timekeeping practices are a lawsuit waiting to happen.

In one recent case, two clerical workers sued for several years of overtime back wages. The workers said they had worked for years in a casual “comp time” set-up, tracking their own hours and taking extra leave to offset the overtime. Because there were no official time records, the company was at the workers’ mercy.

Note:
The new FMLA regulations carry new record-keeping requirements. Document any disagreement concerning FMLA leave—that will help you avoid or win FMLA lawsuits.

Communicate the attendance policy’s terms to all employees, and include them in employee handbooks. Apply your attendance policies consistently among employees. Employers that don’t so open themselves up to discrimination claims.

Finally, avoid taking any adverse employment actions after an employee returns from FMLA, ADA or other legitimate leave. Even if the action is unrelated to the leave, an employee may make a case for retaliation or discrimination. If you must take action following a leave, make sure you have well-documented business reasons for the action on file.


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