Leave Policy/Compliance

Absenteeism in the Workplace: How to Handle it Legally and Effectively

Absenteeism in the workplace raises costs and undercuts teamwork. There are ways to handle it, but first make sure it’s not an FMLA- or ADA-protected situation.

“Playing hooky.” “Taking mental health days.” “Fishing therapy.”

Call it what you will, but excessive and especially unauthorized absenteeism in the workplace is a chronic issue for business. It saps productivity, adds to costs when substitute labor has to be brought in, and undercuts today’s team-oriented work settings.

The problem isn’t new, of course. Even back in the 70s, one study estimated that three percent of the workforce is absent on any given day. The question is what you do about it, especially as the law has created certain protected absence situations. This question was addressed by Manesh Rath, a partner with the Washington law firm of Keller and Heckman, at a recent SHRM conference.

Know the laws governing protected workplace absenteeism

First priority, said Rath, is to become familiar with laws concerning protected absence from the workplace.

He referred in particular to the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA). FMLA allows qualified workers up to 12 weeks of unpaid absence in a 12-month period, on either an extended or intermittent basis, for personal medical issues, or to care for family members with such issues. ADA mandates “reasonable accommodation” for a worker’s disability, which may take the form of time off for medical or other needs.

Sometimes, however, the limits of these laws are pushed. As an example, Rath cited an airline employee who claimed that taking time off to pick up a car for use by his pregnant wife constituted caring for her under FMLA.

The story didn’t sell to either his boss or a judge. To care for a family member with a medical condition, the court said, required close, continuing proximity. What’s more, “care” meant medical, hygienic, nutritional or psychological aid. Though taking time to transport a relative to a medical appointment qualified as such aid, picking up a car to do it did not!.

Employers can set rules about protected absenteeism in the workplace

Employers can set reasonable rules around protected leave. In evidence, Rath cited another case in which an employer demanded that a worker on FMLA leave call in and report his travel to and from the doctor. The employer further demanded that these calls be an actual conversation with a designated manager, not a voice or email message.

When the worker failed to comply, he was disciplined. He subsequently sued, but the court again ruled in the employer’s favor, noting that making the worker call in may have been strict, but it still allowed him his leave and did not unreasonably violate his privacy.

Rath then turned to workplace absenteeism not protected by law, and he offered several suggestions to improve attendance:

  • Train managers on how to effectively keep absence records. Sloppy recordkeeping can foster a casual attitude about showing up for work, as well as undermine any later disciplinary steps or legal defense.
  • Offer incentive pay for perfect attendance.
  • Schedule shifts that appeal to employees. Many employers offer flextime, especially on lower-paying jobs, so a worker needn’t take a sick day when he or she needs only an hour off to deliver a child to daycare.
  • Cross-train employees to cover for absent workers.
  • Know when discipline for excessive absenteeism is legal and appropriate.