As employers recognize there are circumstances when employees have legitimate reasons to be absent or tardy, or employees may need to leave early to attend to personal matters. There are other times however when employers suspect that an employee’s stated reason for an absence, the tardiness or reason to leave early is not truthful.
For example, there is the employee who regularly calls in “sick” on the day following payday, or every other Monday or Friday. After a period of time, an employer becomes suspicious that the reasons for the absences are not true but are wary of what actions they can take.
When employees cite their own illness or that of a family member as the basis for their absence, many employers do not inquire further because they worry about violating the employee’s privacy and, also the risks with strictly enforcing their attendance policies.
While some privacy limitations do exist which may restrict certain inquiries, and other laws do protect employees’ absences due to their own or their family member’s medical concerns, such as the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), employers do have rights to enforce their written attendance policy and, in some circumstances, inquire as to the basis of the need for the time off, with supporting medical documentation.
Implement a written attendance policy:
It may sound simple, but the best approach is to create an attendance policy which details the number of days that an employee is entitled to take per year and what procedures must be followed for the attendance to be considered “excused”.
While it is not legally required to have a written attendance policy, such policy can be useful in establishing the expectations of the employee when it comes to attendance. The policy should advise the employee that they must call in by a certain time and that they must provide a reason for the absence.
The policy should reserve the employer’s right to require medical documentation to support the absence if the reason is due to illness. The employee should also be required to call in daily to update the employer as to their return to work status.
Written attendance policies in conjunction with documentation as to the consistent application of the policy can go a long way in defending claims by employees who may be disciplined or terminated on the basis of excessive absenteeism and the potential companion claim of disability discrimination.
Define ‘Excused’ Absences, and Include a Call-in Procedure:
Some employers adopt point systems with steps of discipline based on how many absences occur within a certain time frame. If the employee falls outside the point system then their absences will not be considered “excused”.
Other policies simply provide more general principles such as a statement: “five or more occurrences in a six-month period will be considered excessive absenteeism and result in discipline.” Then define what is an “occurrence” – is it each day of an absence or each absent event regardless of the number of days.
These details are important to be included in the policies to notify employees in advance what kind of absences are acceptable, not just how many they can incur before there are disciplinary consequences.
Also be aware that some absences may be “protected” from a legal perspective, such as FMLA absences, jury duty, absences mandated by a subpoena or court order, and military service. It is important to find out the reason for the absence so a determination can be made if the absence is “protected”.
Another frequently omitted provision of many attendance policies is a well-defined call-in or reporting requirement. Failure to follow call-in procedures (e.g., no-call/no-show) is conceptually and legally distinct from the underlying reason for an absence. Generally speaking, employees can be required to follow established reporting procedures (and disciplined for failing to do so) even if the reason for their actual absence is otherwise “excused” or legally protected.
An attendance policy should identify (1) whom an employee must call to report an absence (e.g., HR, the employee’s direct supervisor, or a shift leader) and (2) when the absence must be reported to avoid discipline such as no less than one hour prior to the start time so that business operations are not disrupted too much by the unplanned absence.
PTO or Vacation Should Not Be Used to Excuse an Absence:
Many employees think they can use available vacation or PTO to “cover” otherwise unexcused absences. The policy on attendance, PTO and vacation use should address this issue notifying employees that they cannot substitute vacation or PTO to cover an otherwise unpaid unexcused absence.
Employees Can Be Required to Provide Reasons for An Absence:
Many employers are reluctant to ask for details about an employee’s absence because of the potential claim of privacy violations. Employers are permitted to inquire of their employees why they were absent or why they intend to be absent. For multi-day absences, specifically ask if the stated reason was the reason for each day missed. If the response is nothing more than “I was sick,” you should ask, “with what?” Employers are entitled to (and should) ask whether specific absences were due to the certified condition or some other condition.
When an employee fails to call in or calls in late, ask why no call was made in accordance with your policy. Failure to follow policy is grounds for discipline. (e.g., an employee calls in at noon for a starting time of 7 a.m. and says “I didn’t feel well so I went back to sleep”. This is not acceptable and should result in discipline.
The answers to those questions will help you evaluate whether you (1) have any leave obligations under state or federal law or (2) need to engage in an interactive process with the employee to discuss reasonable accommodations under the State law and ADA for disability related conditions.
Determine the basis for the absence to help assess whether the employee’s absence or failure to properly call in as a violation of your attendance policy.
What Should I Do?
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Create an attendance policy and state that excessive absences and/or tardies will lead to disciplinary action up to and including termination;
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Detail the number of days allowed – paid or unpaid;
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Detail a call in procedure and state that a no call no show or failure to follow the call in procedure will result in discipline;
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Ask the employee for the reason for the absence;
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Document the reasons and track the days out;
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Determine if FMLA/CFRA/PDL laws may apply to protect the absences;
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Consult with legal counsel prior to terminating any employee with attendance issues.