By Glenn A. Duhl, Esq. & Angelica M. Wilson, Esq.
As the days grow shorter and the school buses are back in the morning commute, it’s that time again to talk about workplace attendance.
Absenteeism is a common problem in the workplace. It causes significant disruption, expense and inconvenience to the organization and its staff. It also places many employees’ jobs at risk. The issue has risen to the top of the list so much so that paid sick leave is a presidential issue nationwide. Yes, from time to time, an employee will unfortunately become ill and need time off. The problem is when you see the same employee repeatedly absent from work, and patterns such as not coming to work on Mondays or Fridays. Is this a sign of a larger problem? It often is. It may be suggestive of underlying issues such as alcoholism, drug use or mental health issues. What should be done?
The unemployment compensation laws recognize that a certain number of unexcused absences is considered to be “willful misconduct,” which may render an employee ineligible for unemployment compensation. For example, in Connecticut, if an employee is absent without “good cause” or without notice for three separate instances within a twelve-month period, that employee may be disqualified from receiving unemployment compensation benefits. (See Regulations of Connecticut State Agencies, sections 31-236-24 and 31-236-26). Under New York law, excessive absence for a “non-compelling” reason or continued absenteeism may be considered “misconduct” so as to disqualify an employee from collecting benefits. (See N.Y. Labor Law, section 593.3).
If that is so recognized, shouldn’t an employer keep a tight rein on employee absences? Absolutely. If not, the unemployment compensation department could be more inclined to believe that the employer accepted the poor attendance. As such, even if the requisite number of absences was met, the employer’s perceived loose enforcement of its attendance policy may ultimately benefit the employee who took advantage of it.
Similarly, employees who do report to work, and work hard at their jobs, often frown upon an employer’s loose enforcement of the attendance policy. When teammates do not pull their respective workload, fellow employees get upset and tend not to work well together. This, in turn, impacts workplace morale.
So what may be done? While attendance incentives and “no-fault” attendance policies may encourage positive employee behavior, these same policies can be seen as discriminatory. Under a no-fault attendance policy, the employer designates a specific number of absences that are allowed during a given time period, such as five absences per quarter. Once an employee reaches the maximum number of allowable absences, regardless of the reason(s) for the absence (i.e., medical, personal, etc.), any additional absence is a violation of the employer’s attendance policy, and the employee faces discipline.
While a no-fault policy is attractive because it is easy to enforce and eliminates the appearance of favoritism (which, as discussed above, can negatively impact workplace morale), it can subject an employer to liability if implemented too rigidly. For example, an employer that treats an absence covered by the Family and Medical Leave Act (FMLA) and/or the state equivalent, as a violation of the employer’s attendance policy is in violation of the FMLA and/or state law governing unpaid leave for specified family and medical reasons. Similarly, an employer must guard against disciplining an employee for attendance without taking disability into account, as the employer may run afoul of the Americans with Disabilities Act (ADA), as well as similar state laws. Thus, any no-fault attendance policy should include language that permits exceptions for absences under the ADA or FMLA, in addition to any other applicable state laws with similar protections.
The good news? Attendance incentives, such as “perfect attendance” bonuses, are less problematic. Under FMLA regulations, an employer is permitted to exclude an employee taking FMLA leave from a perfect attendance bonus so long as the employer disqualifies employees having taken other leaves (i.e., vacations). [See 29 C.F.R. section 825.215(c)]. This is a case where the carrot may be more effective than the stick when it comes to motivating employees to comply with attendance policies.
Glenn A. Duhl and Angelica M. Wilson are management-side employment and litigation lawyers at Siegel, O’Connor, O’Donnell & Beck, P.C. Please visit www.siegeloconnor.com for more information.
The information contained in this article is general in nature and offered for informational purposes only. It is not offered and should not be construed as legal advice.
(image courtesy of mmchr.com)