Attendance Policies – There is More to Them than Meets the Eye

by Nancy Owen, PHR

Many organizations have debated about attendance policies over the years. Is it better to have a traditional attendance policy, a no-fault attendance policy, or no attendance policy at all? For that matter, should attendance be treated as an objective or a competency?

Before we get too deep into the subject, let’s consider a few definitions. First of all, an attendance policy is the set of rules related to the attendance of employees. It includes provisions for absenteeism, tardiness, calling off, and the kind of time away from work that is allowed, such as sick leaves, personal leaves, vacation or other types of pre-authorized leaves.

Under a “no-fault” attendance policy, an employee accrues points (or “occurrences”) for each absence, regardless of the reason for the absence. After an employee accumulates a pre-determined number of points, the employee is usually subject to increasing levels of discipline under a progressive disciplinary action program, with the end result being termination.

What about that question of objective vs. competency? An objective is a thing aimed at or sought after, such as a goal. A competency is an ability to do something successfully or efficiently. When it comes to employers feelings about where attendance should fall on the job evaluation form, most feel that showing up for work on time and as scheduled is the expectation, and so it should be a competency. Others believe perfect attendance may not be possible but should be the goal, so it would be considered an objective.

One thing that everyone agrees upon is that employee absenteeism is one of the most common and costly workplace issues facing employers today. Absenteeism and tardiness can seriously disrupt an employer’s ability to meet its objectives and mission. It is also detrimental to staff morale and can hit the bottom line hard. You can expect a decrease in productivity because the employees who do show up for work usually have to pick up the work load for those who don’t. Remember you will most likely need a larger training budget, as well, for replacement workers. Replacing your absent workers can also lead to increased overtime pay and even temporary agency fees. Many companies find themselves allocating 3-4% of their labor budget for absenteeism based on an average of eight (8) working days missed per employee annually.

Real illnesses are still the cause for the majority of employee absences, according to the Society of Human Resources; however some studies have shown that less than one-third of absences from the workplace are related to poor health.

Millennials, our newest generation of workers, born as early as 1982, do not generally consider their physical attendance at work to be significant most likely because they do not care for face-to-face communications. Instead, they prefer to communicate electronically. They expect to have a balance of life and work that requires flexible work schedules that sometimes include a later start to the workday, or working from home when they are not able to make it into work at all.

According to federal and state law, employers are able to establish their own attendance policies as long as they are subject to minimum wage and overtime rules. But while you are free to set and enforce attendance rules, you must also comply with key federal laws, including the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).

FMLA requires private organizations with 50 or more employees located within a 75-mile radius and all public employers to grant eligible employees up to 12 weeks of unpaid leave for qualifying reasons 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. One downside to the use of a no-fault attendance policy is that these employers often find themselves in court because an employee claims that a past absence was in fact related to an FMLA leave.

The ADA may also require you to suspend or modify your attendance policy to reasonably accommodate a qualified worker who needs time away from work due to a disability. And, as with the FMLA, you can NOT discipline workers who require ADA leave. Simply put, 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, regardless of what your attendance policy says.

Finally, avoid taking any adverse employment actions after an employee returns from FMLA, ADA or another legitimate leave. Even if the action is unrelated to the leave, an employee may put in a claim against an employer for retaliation or discrimination. If you really have to take action following a leave, make sure you have well-documented business reasons for the action on file. It is a good idea to consult with your legal counsel before making that decision. You can read more about this subject in our previous blog “Don’t fire an employee on leave until you read this!

A few things to strongly consider if you do have an attendance policy:

  1. Communicate the attendance policy’s terms to all employees, and include them in your employee handbook.
  2. Apply your attendance policies consistently among all your employees. Employers that don’t do so open themselves up to discrimination claims.
  3. Remember an employer always has the right to ask an employee to explain the reason for an absence. If the reason has to do with something that is normally documentable, the employer has the right to require the employee to document the reason given such as jury duty, taking care of a matter in court or a visit to a doctor’s office. Forget about insisting on specifics.  That could get you in trouble with the Health Insurance Portability and Accountability Act (HIPAA) which is a federal law that safeguards private medical information. If an employee refuses to explain why they had to miss work, the employer would be entitled to treat the absence as unauthorized for that reason alone.
  4. Having an attendance policy in place helps you establish professional expectations for your employees and gives you a formal structure for handling repeated noncompliance.
    On the downside, employees today do not want to feel like children, so your policy should have some degree of flexibility to ensure leeway based on circumstances.
  5. Make sure your policy has well-defined call-in or reporting provisions. Address how you will handle a failure to follow the call-in procedures, including a no call/no show. 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. You will want to be sure you have identified (a) whom an employee must call to report an absence (i.e., the supervisor or HR department); and (b) when the absence must be reported to avoid discipline (i.e., “no less than one hour prior to the start of your shift”).

Remember . . . careful management of workplace attendance is an important part of your organization and an important aspect of your supervisor’s role. Be sure you review all the risks and rewards associated with you policy and procedures. Then make sure that all your employees are in the know.

If you have questions about managing your attendance issues or any other human resources issues, please send an email to hrhelpline@eastcoastrm.com. We will be happy to help!

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