HR Management & Compliance

Tips for Tweaking Attendance Policies to Meet Rising Demand for Flexible Work

As employees return to the workplace from remote locations and give up the ability to take a break and walk the dog whenever they want, many are demanding more flexible work schedules. Here are some tips that may help.

Not All Jobs Can Be Flexible

As humans, we think primarily about what benefits us individually. As HR managers, however, you must think broadly about the institution as a whole and how all the pieces, including attendance, fit together. The goal is to create consistent policies that improve efficiencies that are not only fair but also legally enforceable.

In assessing the potential for flexible attendance policies, it’s important to evaluate the nature and type of work your organization tackles. Some jobs, particularly if they can’t be done remotely, may require very specific start and stop times. Here are some examples:

  • In healthcare settings, if a nurse shows up late for a shift, the facility may not meet the proper ratio to care for its patients. If a lab tech is absent or late, critical tests for patient treatment may be delayed; and
  • In the manufacturing industry, everyone often needs to work together to create a product.

In fact, any position where everyone needs to start and stop together (or work together as a whole) or the timing is critical (e.g., for patient care) is unlikely to be appropriate for flexible work times. Further, in certain circumstances, those working the shift “before the flexible start time” may have to stay late until the nurse or lab tech gets there to cover patient and resident care, therefore creating an unfair situation for the holdovers as well as the potential for overtime pay.

When Flexible Schedules May Be Effective

Flexible schedules and times may be appropriate for people who work independently, can do their jobs remotely or at off-hours, and/or are individually motivated to manage the fluctuations.

Flexible policies need to consider any requirements for being on time for scheduled meetings, regular check-ins, and participation. In addition, you must assess whether commute time would apply when a remote worker needs to meet with others at the office. Under Iowa law, you can structure the policies to treat traveling to and from the office as commute time and therefore noncompensable.

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5 Helpful Questions

Why should I care about an attendance policy? You should focus on attendance policies because they help you to (1) maintain a consistent work environment, (2) know when employees are working, and (3) ensure your teams can function efficiently.

Notably, an attendance policy is important when considering whether employees let go for failing to be at work should be compensated by Iowa Workforce Development’s job service program. Traditionally, employees might disqualify themselves from receiving the benefits if (1) there is a written attendance policy, (2) the company consistently follows it, and (3) the employee was warned that further attendance violations would result in termination. Open-ended and fluid policies are more likely to result in the employee qualifying for the benefits.

Also, under Iowa law, employees who are no-call/no-show for a period of three or more days are typically considered to have voluntarily quit and are disqualified from getting benefits. You may fire an employee after a single no call/no show, but benefits are likely to be paid.

Can employees have some flexible and other specific start times? Yes, you can tailor your attendance policies for individual departments or groups. Of course, managing multitiered attendance policies will be significantly more complicated. Typically, to avoid triggering claims of favoritism or simple bookkeeping chaos, you shouldn’t craft the policies on an individualized basis, absent any Americans with Disabilities Act (ADA) or Family and Medical Leave Act (FMLA) issues.

For employee categories as a whole, however, it’s possible to establish alternate attendance policies. The approach may work for various management positions or sales, transcription, or other similar roles at your company.

Several employees have small kids at home. Can we make the attendance policy flexible just for them? It isn’t appropriate to single out certain employees and allow them greater leeway under your existing attendance policy. You need to look at any changes in terms of categories of employees. In that way, you can avoid potential discrimination claims or simply the PR burden of your employees thinking you play favorites.

Although not having children isn’t typically considered to be a protected category, playing favorites could lead to a discrimination claim (e.g., for age bias). If an employee has disability accommodation issues or uses intermittent FMLA leave, the circumstances could lead to a different result. Any attendance policy should consider things like the FMLA.

We don’t like the point system because if feels harsh. Having a point system doesn’t work for every company. It depends on your culture. When you define absenteeism consistently, however, point systems do have the benefit of being specific and clear.

Point systems are neutral on the surface, help your employees to understand what your expectations are, and allow you to avoid the appearance of favoritism. You must apply them consistently, however, within your department and across the company as a whole while taking into consideration things like the ADA.

Can we skip the paperwork? Depending on the size of the department you manage, it can be difficult to maintain clear and consistent reporting for your attendance policies. Like most things, however, doing it right has real value when you encounter issues or a problem employee. A clearly written, published, communicated, and enforced policy can provide significant protection against wrongful termination or discrimination claims or job service benefits.

Bottom Line

Determine what type of attendance policy would work best for your enterprise and then clearly communicate your guidelines and expectations to all employees. Providing clear guidance as well as consistent enforcement can minimize the liability risk in a variety of ways. Policies that are unworkable (or you don’t follow) are likely to be a detriment. They should take into account the nature of the work, your workforce, and your actual expectations.

Jo Ellen Whitney is an attorney with Dentons Davis Brown in Des Moines, Iowa. You can reach her at joellen.whitney@dentons.com.