Workplace attendance policies big challenge for employers

April 26, 2010
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Employers continue to face many challenges in the administration of attendance and tardiness policies. They commonly struggle to determine what type of attendance policy to adopt and whether their current policy requires a major overhaul or a simple updating.

No-fault/discretionary policies

While policies may widely vary, most employers generally adopt either a "no-fault" or a "discretionary" attendance policy.

No-fault attendance policies are rigidly structured attendance frameworks in which the employer indicates that a designated number of points will be assessed for each attendance, tardiness, or early leave "occurrence" and then designates specific disciplinary action to correspond with various point levels.

Many employers find that such policies help curb absenteeism, promote administrative efficiency, and reduce costs. However, employers also sometimes discover that clever employees can take advantage of this framework by missing the maximum number of sick days allowed, even without legitimate reason for their absences.

In contrast, discretionary attendance policies, which generally provide discretionary attendance guidelines rather than a rigid attendance framework, offer needed flexibility in addressing attendance issues.  They allow employers to consider the circumstances surrounding an employee's absence or tardy. However, such policies can be difficult to administer, given their limited guidance.

Because there is no magic formula for making these determinations, an employer must begin by critically examining its needs, concerns and resources. Thus, an employer should consider the type of workforce it employs as well as the overall environment in which its employees work.

The employer should also closely examine the types and frequency of the attendance problems it experiences. 

Finally, an employer should realistically assess the resources, capabilities and sophistication of its human resources function. In doing so, employers can better determine the type of attendance policy that will most effectively address their needs and concerns. Moreover, employers may learn that certain problems can be better addressed through the adoption or revision of other company policies rather than through the attendance policy itself.

Family, Medical Leave Act issues

Requests for and use of extended, intermittent and reduced hour leaves by employees pursuant to the Family and Medical Leave Act can further complicate an employer's administration of its attendance policy. Twelve weeks of unpaid leave per year is available to eligible employees to care for a spouse, child or parent with "a serious health condition," or for the employee's own "serious health condition."

The FMLA's definition of the term "serious health condition" is very broad and is intended to cover a variety of physical and mental conditions.

The FMLA prohibits employers from treating an employee's use of FMLA leave as a negative factor in employment actions such as hiring, promotion, performance evaluation and disciplinary action.  However, to curb possible employee abuse of FMLA leave, an employer may require medical certification from an employee requesting medical leave for his or her own serious health condition, or that of the employee's spouse, child or parent.

The U.S. Department of Labor has issued regulations and a model certification form for implementing the certification requirement. The form may be downloaded from the DOL's website.


Americans With Disabilities Act

The Americans with Disabilities Act requires employers to provide a "reasonable accommodation" to the known physical or mental limitations of a qualified applicant or employee with a disability, unless it can be shown that the accommodation would impose an undue hardship on the business.

As with FMLA leave, employers are also experiencing an increase in the number of allegedly disabled employees requesting time off work, as an accommodation pursuant to the Americans With Disabilities Act. Importantly, the ADA does not require an employer to excuse a disabled employee from compliance with its legitimate, non-discriminatory employment policies and practices.

More specifically, an employer does not have to provide a disabled employee with a blanket exemption from its attendance policy as a reasonable accommodation for a disability. However, assuming the employee qualifies for protection under the ADA, an employer could be required to consider a limited exemption from its policy in the rare case where attendance or prompt reporting to work is not an essential function of the job.

While employers continue to face numerous challenges in the administration of attendance policies, such challenges are not insurmountable. The key is to have a good policy which is actively managed in a fair and non-discriminatory fashion.

Richard Fries (rdfries@varnumlaw.com) is a partner in the law firm of Varnum LLP.

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