Most employers recognize that there are times when employees have legitimate reasons to miss work, be tardy, or leave early. Unfortunately, it’s not uncommon to suspect an employee’s stated reason for an absence (or a recurring absence) is a lie. Take, for instance, a worker who is repeatedly “sick” the Monday after payday. Because employees frequently cite medical, personal, and family reasons as the basis for their absence, many employers worry about violating the employee’s privacy and, more specifically, the legal risks associated with rigorously enforcing otherwise reasonable attendance expectations.
Indeed, certain laws ― most often the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) ― impose limits on employers’ management practices as they pertain to absences and require you to analyze and approach employee circumstances on a case-by-case basis. However, there are several “structural” considerations you can implement to help minimize employee abuse of your attendance policies and gain greater flexibility in combating chronic violations of those policies.
Have and enforce a written attendance policy
It may sound simple, but many employers, particularly those with smaller operations, don’t have written attendance standards. Often it’s because the company either has never had to address a suspected abuser or wants to be perceived as a supportive employer that offers employees flexibility (under the unspoken assumption that employees will use that flexibility responsibly). While that approach can foster positive employee relations, it is also ripe for abuse.
The consequences of abuse go beyond the loss of productivity associated with a single absent worker. If one person is allowed to abuse the system, his attitude will eventually affect coworkers, who inevitably will wonder why they should bother being so responsible when their peer seems to be getting away with murder.
While written attendance standards aren’t legally required, they are useful in setting and reinforcing your expectations when addressing individual employees who have fallen short. The more objective and universal your standards are, the better. Some employers adopt point systems with varying tiers of discipline based on how many times the infraction occurs. Others establish one or more general principles ― e.g., “five or more occurrences in a six-month period will generally be considered excessive absenteeism and result in discipline.”
Some organizations opt to maintain flexibility at the expense of some clarity by simply prohibiting “excessive” absences. Whatever standard you choose, it should fit the needs of your organization (or a specific department) and be clearly disseminated to all affected employees. Your written attendance standards ― along with a demonstrable and consistent history of enforcement ― are the foundation for managing individual attendance issues.
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Define ‘excused’ absences, and include a call-in procedure
Though many employers omit these important details from their policies, it’s always easier to combat suspected abuse when you’ve told employees in advance what kind of absences are acceptable, not just how many they can incur before there are disciplinary consequences. It goes without saying that your policy’s list of excused absences should include those protected by law, such as FMLA absences, jury duty, absences mandated by a subpoena or court order, and military service.
Additionally, “excused absences” typically include situations that aren’t legally required but are obviously (or at least verifiably) not an employee’s fault (e.g., a death in the family, lack of available work, or extreme weather conditions). Clearly listing these types of “excused” absences in your policy allows you to short-circuit arguments that otherwise would be raised when an employee tries to claim he was unaware that his two-day road trip with his third cousin to see a faith healer is insufficient to excuse his failure to show up at work.
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.
Thus, you should include in your attendance policy a reporting requirement that clearly identifies (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. Pick whatever best suits your needs ― for example, “no less than one hour before the start for your shift,” “within 30 minutes of the start of your shift,” or simply “as far in advance of your shift as possible.” In certain circumstances, however, you may have to excuse noncompliance with your call-in requirements.
Don’t let PTO and vacation be used to excuse an absence
As a rule, paid time off (PTO) ensures an employee is paid for a period of missed time from work. PTO (including vacation) is not and should not be allowed to become an additional means of “excusing” an absence that wasn’t approved in advance. Nonetheless, many employees think they can use available vacation or PTO to “cover” otherwise unexcused absences.
Don’t do anything to foster that misconception (for instance, allowing employees to “cover” unexcused absences with unused vacation time). Instead, make a policy forbidding the use of vacation or PTO for unexcused absences. In the alternative, you can respond to requests to use vacation or PTO for unexcused absences by paying the employee for the hours he missed while still counting the hours as unexcused and imposing any attendant disciplinary consequences.
Don’t accept incomplete or ambiguous excuses
As noted earlier, many employers are hesitant to press for details about an employee’s absence because they fear it may be “too personal” or there may be legal risks. However, it is always permissible (and highly recommended) to ask why an employee was absent. For multi-day absences, you should 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?” Don’t omit asking these questions simply because an employee has received certification for intermittent FMLA leave. You are entitled to (and should) ask whether specific absences were due to the certified condition or some other condition.
If an illness extends across a weekend or other period of time when the employee isn’t scheduled to work, be sure to ask if he was sick with the same condition or symptoms before and after the nonworking days. When an employee fails to call in or calls in late, ask him why he didn’t call in or why he didn’t call in accordance with your policy (e.g., if he called minutes before his shift when he could have called earlier).
The answers to those questions will help you evaluate whether you (1) have any FMLA obligations or (2) need to engage in an interactive process with the employee to discuss reasonable accommodations under the ADA. In addition, asking these targeted questions will help you determine whether you can count the employee’s absence or his failure to properly call in as a violation of your attendance policy. You also will be able to determine if you need additional information (e.g., an FMLA certification or other documentation from a doctor).
The reasons for employee absences are as numerous as the stars, and your response needs to be customized appropriately to each case. However, when you suspect an employee is abusing your attendance policy, having the above processes built into your policies and procedures will almost always provide you with greater ― and better ― response options.