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Regular attendance is an essential job function, and absenteeism costs employers dearly. Most employees must be present at their jobsite on a regularly scheduled basis to do their jobs. However, there are many legitimate reasons why employees cannot be at work every day.
Employers should have a policy that addresses all the issues of attendance, including lateness, sickness, personal business, family and medical leave, and disability concerns. A key part of an attendance policy is setting objective criteria for when excessive absenteeism requires disciplinary intervention and ensuring that the policy is communicated to employees. Solutions for improving attendance include compressed workweeks, flextime, job sharing, rewards, telecommuting, and constructive discipline, up to and including termination.
All employers must set criteria for what constitutes lateness and what are valid excuses for lateness. Is an employee who arrives two minutes after starting time considered late? Five minutes? Fifteen minutes? Are starting and stopping times unimportant altogether? Does it matter what time employees arrive at work as long as they work the requisite number of hours or complete their work? Chronic lateness can have a negative impact on work flow, employee morale, and the quality of work. At what point is lateness considered chronic? What action, if any, will the organization take in cases of chronic lateness?
The importance of employees reporting to work exactly on time may depend in large part on their job function. For example, it's probably critical for people to be on time if they deal with the public, such as receptionists, sales clerks, bank tellers, and nurses. Factory workers and assembly line employees must be at their stations on time in order for a department's work to begin. On the other hand, a prompt start is not as important for some office workers or for professional jobs that are primarily “self-regulated.”
All people get sick. Most employers offer paid days to provide income to employees who miss work due to illness. In fact, several states and localities now mandate that employers provide a minimum number of paid sick leave hours per year. More information on these laws is available.
Please see the state Sick Leave section.
"Presenteeism." "Presenteeism" is a phenomenon where sick employees drag themselves into work. It is not just a physical burden on the employee, but can harm the employer because of the reduced productivity of the sick employee, the possibility of infecting other employees, and the possibility of the employee having a relapse that results in a longer recovery period. Some experts estimate that presenteeism costs employers more than absenteeism.
Solutions for presenteeism include:
• Encouraging employees who are at risk of infecting others or of having a relapse to stay home
• Implementing policies to make it less likely that employees get sick in the first place
• Implementing sick leave policies that discourage presenteeism such as unlimited sick time combining sick, vacation, and personal leave into a single paid time off benefit
• Reducing the stigma associated with missing work
Presenteeism is more common when jobs are scarce and employees are fearful of being terminated if they take any sick time. As the job market opens up, presenteeism tends to become a smaller problem.
Doctor's appointments, teacher conferences, banking matters, and emergency home repairs are all valid reasons for employees to miss time from work. However, sick time is usually limited to sickness. Many employers offer their employees personal days and/or personal hours to take care of personal matters that just cannot wait or that cannot be handled after work hours or on weekends. Please see the national Personal Leave section.
Some state laws require paid or unpaid leave for teacher conferences, family doctor’s appointments, and the like.
Please see the state Leave of Absence section.
The Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) must be considered when applying an attendance policy. Disciplining a disabled employee for chronic absence or lateness, could be a violation of the ADA. Employers may offer a special schedule as an accommodation for a disability. It may be a violation of the FMLA to penalize an employee who takes time off that qualifies for leave under the Act. Employers are subject to national, state, and case law in these areas.
Unforeseeable need for leave. Under the FMLA, when the need for leave is not foreseeable, employees are required to provide notice as soon as practicable under the facts of the particular case. It generally should be practicable for the employee to provide notice of leave within the time prescribed by the employer's usual and customary notice requirements applicable to unforeseeable leave.
FMLA’s regulations suggest that oral notification to the employer of the need for leave should be, at the latest, made within 1 or 2 business days of the event giving rise to the need for leave. The regulations provide that “practicable” means as soon as both possible and practical. Taking all the circumstances into consideration, the amount of notice may be different for each individual situation.
Call-in procedures and FMLA. Under the FMLA's regulations, an employee must comply with an employer’s call-in procedures unless unusual circumstances prevent the employee from doing so (in which case, the employee must provide notice as soon as he or she can practicably do so). The regulations make clear that if the employee fails to provide timely notice, he or she may have the FMLA leave request delayed or denied and may be subject to whatever discipline the employer’s rules provide.
Late notice of unforeseeable leave. When the need for FMLA leave is unforeseeable and an employee fails to give notice, the extent to which an employer may delay FMLA coverage for leave depends on the facts of the particular case. For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer's policy, but instead the employee provided notice 2 days after the leave began, the employer may delay FMLA coverage of the leave by 2 days. The absence that occurs within the delay is not FMLA-protected.
Foreseeable leave. When the need for FMLA leave is foreseeable fewer than 30 days in advance, and an employee fails to give notice as soon as practicable under the particular facts and circumstances, the extent to which an employer may delay FMLA coverage for leave depends on the facts of the particular case. In those cases where the employee is required to provide at least 30 days’ notice of foreseeable leave and does not do so, the employer is permitted to ask the employee for and the employee must provide an explanation as to why such notice was not provided in a timely manner.
Many employers offer awards to employees with outstanding attendance records. These awards, designed to encourage consistent attendance, can give rise to many legal issues. Please see the national Bonus Payments section.
FMLA rules. The FMLA regulations state that employees on FMLA leave are not entitled to any bonus or payment, whether it is discretionary or nondiscretionary, when the bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold, or perfect attendance (assuming that the employee has not met the goal due to FMLA leave).
Employers may deny such payment only if employees on an equivalent leave status (non-FMLA leave) are also denied bonus and incentive payments. Attendance awards are predicated on the achievement of a specified job-related performance goal, and therefore may be denied based on FMLA absences. Bonuses that are not premised on the achievement of a goal, such as a holiday bonus given to all employees, may not be denied to an employee because he or she took FMLA leave.
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from discriminating against employees or applicants on the basis of genetic information about employees, applicants, former employees, or their family members. GINA applies to all public employers, private employers with 15 or more employees, employment agencies, and labor organizations.
Under GINA, it is unlawful for an employer to request or require genetic information about employees, applicants, former employees, or their family members. Therefore, if an employer's attendance policy allows supervisors to ask workers about the nature of the illness or injury before authorizing sick-leave pay or if a physician's statement is necessary for sick leave (i.e., after 2 or 3 days' absence), employers must consider GINA and the possibility that requiring such disclosure or certification may violate the law.
Employers with such sick leave policies are advised to include the GINA safe harbor statement in their policies and advise employees of the GINA provision.
GINA safe harbor exception. Employers do not violate GINA if their acquisition of genetic information is inadvertent. To be covered by this exception, employers requesting medical information from an individual or healthcare provider must direct the individual or provider not to provide genetic information.
The regulations issued by the Equal Employment Opportunity Commission (EEOC) provide the following model "safe harbor" language for employers to include with requests for medical information:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. 'Genetic information,' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
The "watercooler" exception. Acquisition of genetic information is also considered inadvertent if a manager or supervisor learns genetic information about an employee by overhearing a conversation between the employee and others or by receiving it during casual conversation with the employee or others. Note: The exception does not apply if an employer follows up with "probing" questions, such as whether other family members have the condition or whether the employee has been tested for the condition.
Confidentiality. No matter how an employer obtains genetic information, the information must be treated as a confidential medical record and kept separate from personnel files. Access to medical files should be strictly limited. Information may be kept in the same files that an employer uses for confidential medical information under the ADA as long as the ADA's confidentiality requirements are met.
An employer should have an attendance policy that must be communicated to all employees so that its provisions can be enforced. The policy should be in writing and included in the employee handbook. Most important, it should be applied consistently. Employers may be sued for discrimination if they penalize some employees for poor attendance, but not others.
A formal, written policy clarifies the employer's viewpoint and makes clear to employees at what point their poor attendance is unacceptable and a cause for discipline. The policy should state how many absences or instances of lateness are acceptable (and within what period of time).
Excessive lateness and absenteeism are the most common work rule violations and can be difficult to deal with.
A “no-fault” policy that grants employees a certain number of late time for any reason eliminates the problem of evaluating excuses. This policy allows employees leeway for traffic jams, unexpected errands, and just being late. Any employee who goes beyond the entitlement is then subject to discipline, no matter what the reason is for the lateness.
The best time to deal with the concept of lateness is at the beginning of employment. At orientation, the supervisor or human resources manager should explain and emphasize the organization's policy on tardiness, the disciplinary steps that may be taken, and the effect that excessive or chronic lateness will have on job evaluations and possible promotions.
Monitoring work hours. It is difficult and tedious for employers to monitor an employee's every move. If the layout of a particular workplace makes it difficult for supervisors to know when employees are arriving or leaving or how long they're taking for lunch, an employer may want to detail procedures for supervisory monitoring of work hours. For instance, if the organization uses a time clock, the procedures and rules governing its use should be made clear.
Docking. It is a common practice to “dock” nonexempt, hourly employees for lateness, which simply means paying the employee only for time actually worked.
The Fair Labor Standards Act (FLSA) allows employers to round starting and stopping time up or down “to the nearest twelfth, tenth or quarter of an hour.” However, the time must be averaged out over a specific period (e.g., a pay period) so that employees are paid for all time actually worked. As long as employees are fully compensated for all the time they actually work, this practice will be accepted unless it is used in such a way that, on average, employees are not properly compensated for all the time they have actually worked.
Employers may not dock exempt employees' wages due to lateness. The FLSA and most state laws prohibit reducing wages for any exempt employees. However, employers may require exempt employees to make up the missed time. If the Department of Labor becomes involved due to an employer's docking of exempt employees, they may take away exemptions for all employees in that class and require overtime to be paid retroactively and prospectively toall in the exempt status. It is better to handle lateness problems with exempt employees through disciplinary action.
Use of intermittent FMLA leave. When an employee takes FMLA leave intermittently, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave. However, the increment of time may not be greater than 1 hour. An employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken, meaning, if an employee leaves during the last half-hour of his or her shift for an FMLA-covered event, the employee may not be "docked" a full hour of FMLA leave (even if this is the shortest period of time that the employer uses to account for use of other forms of leave).
Please see the national Leave of Absence section.
Every employer should have a policy that addresses all of the issues that surround sickness. Consider the following questions when evaluating or implementing your attendance policy:
Who should be notified when an employee is sick, and when? Experience has shown that having absent employees report their absence directly to their immediate supervisor tends to reduce the absentee rate. This may be a nuisance to the supervisor, but it usually discourages employees from having others call on their behalf or by simply leaving a message. The policy should also state when an employee should notify his or her supervisor and how often he or she must call in (e.g., every day for short absences, or every week during an extended absence).
What disciplinary action may be taken? Clearly define what constitutes an unacceptable level of absenteeism, what disciplinary steps will be taken, and under what circumstances an employee's absenteeism rate reaches that level.
When is a medical excuse or medical release required? If an employee has been absent for several days due to sickness, will a signed medical form be required for that person to return to work?
Remember to include the GINA safe harbor statement in all requests for a doctor's note in order to avoid claims of genetic discrimination.
It is critical to coordinate your attendance policy with other company policies such as sick pay, leave of absence, personal/family, disability, jury, bereavement, and military leave as these issues sometimes overlap. Verify that all of your policies comply with federal and state laws and are applied equally and consistently to all employees.
No-fault policy. A no-fault attendance policy is similar to a no-fault lateness policy. Employees are allowed a specified number of absences within a specified time period. Once that number of absences is exceeded, disciplinary procedures automatically are instituted.
There are many solutions to attendance problems; some are proactive, others are reactive. Proactive solutions include offering a compressed workweek, flextime, job sharing, rewards, and telecommuting. Proactive solutions should be tried, if possible.
Compressed workweek. A popular alternative to rigid work schedules and flextime is the compressed workweek. Employees work the same amount of hours, but do so in a different manner. For example, instead of working five 8-hour days for a total of 40 hours, the employee works 9 hours, four days a week and only 4 hours on the fifth day for a total of 40 hours (i.e., the employee gets every Friday afternoon off).
Whether participating in flextime or a compressed workweek situation, the time off allows employees to schedule appointments with doctors, run errands and take care of personal business on their own time instead of asking for time off and creating scheduling or coverage problems.
Flextime. This policy allows workers to set their schedules according to their individual needs as long as they work a specific number of hours per day and are in the workplace during a core period (e.g., 10 a.m. to 4 p.m.). Most flextime policies require the worker's hours to be regular, but some allow the employee to begin and end the workday at will, as long as the core and required hours are worked daily.
Job sharing. Two or more employees might share a single job. Some employers require core hours that must be shared by both employees and require both employees to attend team, department, and company meetings. Please see the national Part-Time Employee section.
Telecommuting. Telecommuting allows individuals to work at home some of the time, communicating with the workplace through phones and computers. Please see the national Telecommuting section.
Sometimes proactive solutions do not work and employers must resort to reactive solutions such as discipline and termination.
Discipline. For any possible discipline or discharge resulting from an attendance problem to be effective, the policy must be made known to all employees and consistently applied, spelling out how many absences, and within what time period, will call for disciplinary action. If an employer normally uses a progressive discipline system, its steps should be followed for attendance offenses. The employer may take into consideration any extenuating circumstances, but this also should be done with consistency.
To avoid legal problems, all disciplinary procedures should be documented and applied uniformly to all employees. Employees taking legally protected leave, such as FMLA leave or leave given as a reasonable accommodation under the ADA, may not be disciplined for taking such leave.
Termination. Extremely poor attendance or excessive lateness may be cause for dismissal. The facts or circumstances of each case, however, should be carefully weighed. Employers should consider the duration and frequency of the attendance problem, the reasons for these problems, whether they were communicated properly, the kind of work done by the employee, comparison of the employee's record with those of similar employees, whether the policy was clearly made known to employees and applied in a fair and consistent manner, and whether the employee was progressively warned about possible consequences if the problem did not improve.
Practice tip: No matter what type of solution is used, it is always a good idea to stress the importance of attendance by including it in employee evaluations.
Last reviewed on October 31, 2016.
Related Topics:
National
Regular attendance is an essential job function, and absenteeism costs employers dearly. Most employees must be present at their jobsite on a regularly scheduled basis to do their jobs. However, there are many legitimate reasons why employees cannot be at work every day.
Employers should have a policy that addresses all the issues of attendance, including lateness, sickness, personal business, family and medical leave, and disability concerns. A key part of an attendance policy is setting objective criteria for when excessive absenteeism requires disciplinary intervention and ensuring that the policy is communicated to employees. Solutions for improving attendance include compressed workweeks, flextime, job sharing, rewards, telecommuting, and constructive discipline, up to and including termination.
All employers must set criteria for what constitutes lateness and what are valid excuses for lateness. Is an employee who arrives two minutes after starting time considered late? Five minutes? Fifteen minutes? Are starting and stopping times unimportant altogether? Does it matter what time employees arrive at work as long as they work the requisite number of hours or complete their work? Chronic lateness can have a negative impact on work flow, employee morale, and the quality of work. At what point is lateness considered chronic? What action, if any, will the organization take in cases of chronic lateness?
The importance of employees reporting to work exactly on time may depend in large part on their job function. For example, it's probably critical for people to be on time if they deal with the public, such as receptionists, sales clerks, bank tellers, and nurses. Factory workers and assembly line employees must be at their stations on time in order for a department's work to begin. On the other hand, a prompt start is not as important for some office workers or for professional jobs that are primarily “self-regulated.”
All people get sick. Most employers offer paid days to provide income to employees who miss work due to illness. In fact, several states and localities now mandate that employers provide a minimum number of paid sick leave hours per year. More information on these laws is available.
Please see the state Sick Leave section.
"Presenteeism." "Presenteeism" is a phenomenon where sick employees drag themselves into work. It is not just a physical burden on the employee, but can harm the employer because of the reduced productivity of the sick employee, the possibility of infecting other employees, and the possibility of the employee having a relapse that results in a longer recovery period. Some experts estimate that presenteeism costs employers more than absenteeism.
Solutions for presenteeism include:
• Encouraging employees who are at risk of infecting others or of having a relapse to stay home
• Implementing policies to make it less likely that employees get sick in the first place
• Implementing sick leave policies that discourage presenteeism such as unlimited sick time combining sick, vacation, and personal leave into a single paid time off benefit
• Reducing the stigma associated with missing work
Presenteeism is more common when jobs are scarce and employees are fearful of being terminated if they take any sick time. As the job market opens up, presenteeism tends to become a smaller problem.
Doctor's appointments, teacher conferences, banking matters, and emergency home repairs are all valid reasons for employees to miss time from work. However, sick time is usually limited to sickness. Many employers offer their employees personal days and/or personal hours to take care of personal matters that just cannot wait or that cannot be handled after work hours or on weekends. Please see the national Personal Leave section.
Some state laws require paid or unpaid leave for teacher conferences, family doctor’s appointments, and the like.
Please see the state Leave of Absence section.
The Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA) must be considered when applying an attendance policy. Disciplining a disabled employee for chronic absence or lateness, could be a violation of the ADA. Employers may offer a special schedule as an accommodation for a disability. It may be a violation of the FMLA to penalize an employee who takes time off that qualifies for leave under the Act. Employers are subject to national, state, and case law in these areas.
Unforeseeable need for leave. Under the FMLA, when the need for leave is not foreseeable, employees are required to provide notice as soon as practicable under the facts of the particular case. It generally should be practicable for the employee to provide notice of leave within the time prescribed by the employer's usual and customary notice requirements applicable to unforeseeable leave.
FMLA’s regulations suggest that oral notification to the employer of the need for leave should be, at the latest, made within 1 or 2 business days of the event giving rise to the need for leave. The regulations provide that “practicable” means as soon as both possible and practical. Taking all the circumstances into consideration, the amount of notice may be different for each individual situation.
Call-in procedures and FMLA. Under the FMLA's regulations, an employee must comply with an employer’s call-in procedures unless unusual circumstances prevent the employee from doing so (in which case, the employee must provide notice as soon as he or she can practicably do so). The regulations make clear that if the employee fails to provide timely notice, he or she may have the FMLA leave request delayed or denied and may be subject to whatever discipline the employer’s rules provide.
Late notice of unforeseeable leave. When the need for FMLA leave is unforeseeable and an employee fails to give notice, the extent to which an employer may delay FMLA coverage for leave depends on the facts of the particular case. For example, if it would have been practicable for an employee to have given the employer notice of the need for leave very soon after the need arises consistent with the employer's policy, but instead the employee provided notice 2 days after the leave began, the employer may delay FMLA coverage of the leave by 2 days. The absence that occurs within the delay is not FMLA-protected.
Foreseeable leave. When the need for FMLA leave is foreseeable fewer than 30 days in advance, and an employee fails to give notice as soon as practicable under the particular facts and circumstances, the extent to which an employer may delay FMLA coverage for leave depends on the facts of the particular case. In those cases where the employee is required to provide at least 30 days’ notice of foreseeable leave and does not do so, the employer is permitted to ask the employee for and the employee must provide an explanation as to why such notice was not provided in a timely manner.
Many employers offer awards to employees with outstanding attendance records. These awards, designed to encourage consistent attendance, can give rise to many legal issues. Please see the national Bonus Payments section.
FMLA rules. The FMLA regulations state that employees on FMLA leave are not entitled to any bonus or payment, whether it is discretionary or nondiscretionary, when the bonus or other payment is based on the achievement of a specified goal such as hours worked, products sold, or perfect attendance (assuming that the employee has not met the goal due to FMLA leave).
Employers may deny such payment only if employees on an equivalent leave status (non-FMLA leave) are also denied bonus and incentive payments. Attendance awards are predicated on the achievement of a specified job-related performance goal, and therefore may be denied based on FMLA absences. Bonuses that are not premised on the achievement of a goal, such as a holiday bonus given to all employees, may not be denied to an employee because he or she took FMLA leave.
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers from discriminating against employees or applicants on the basis of genetic information about employees, applicants, former employees, or their family members. GINA applies to all public employers, private employers with 15 or more employees, employment agencies, and labor organizations.
Under GINA, it is unlawful for an employer to request or require genetic information about employees, applicants, former employees, or their family members. Therefore, if an employer's attendance policy allows supervisors to ask workers about the nature of the illness or injury before authorizing sick-leave pay or if a physician's statement is necessary for sick leave (i.e., after 2 or 3 days' absence), employers must consider GINA and the possibility that requiring such disclosure or certification may violate the law.
Employers with such sick leave policies are advised to include the GINA safe harbor statement in their policies and advise employees of the GINA provision.
GINA safe harbor exception. Employers do not violate GINA if their acquisition of genetic information is inadvertent. To be covered by this exception, employers requesting medical information from an individual or healthcare provider must direct the individual or provider not to provide genetic information.
The regulations issued by the Equal Employment Opportunity Commission (EEOC) provide the following model "safe harbor" language for employers to include with requests for medical information:
The Genetic Information Nondiscrimination Act of 2008 (GINA) prohibits employers and other entities covered by GINA Title II from requesting or requiring genetic information of employees or their family members. In order to comply with this law, we are asking that you not provide any genetic information when responding to this request for medical information. 'Genetic information,' as defined by GINA, includes an individual's family medical history, the results of an individual's or family member's genetic tests, the fact that an individual or an individual's family member sought or received genetic services, and genetic information of a fetus carried by an individual or an individual's family member or an embryo lawfully held by an individual or family member receiving assistive reproductive services.
The "watercooler" exception. Acquisition of genetic information is also considered inadvertent if a manager or supervisor learns genetic information about an employee by overhearing a conversation between the employee and others or by receiving it during casual conversation with the employee or others. Note: The exception does not apply if an employer follows up with "probing" questions, such as whether other family members have the condition or whether the employee has been tested for the condition.
Confidentiality. No matter how an employer obtains genetic information, the information must be treated as a confidential medical record and kept separate from personnel files. Access to medical files should be strictly limited. Information may be kept in the same files that an employer uses for confidential medical information under the ADA as long as the ADA's confidentiality requirements are met.
An employer should have an attendance policy that must be communicated to all employees so that its provisions can be enforced. The policy should be in writing and included in the employee handbook. Most important, it should be applied consistently. Employers may be sued for discrimination if they penalize some employees for poor attendance, but not others.
A formal, written policy clarifies the employer's viewpoint and makes clear to employees at what point their poor attendance is unacceptable and a cause for discipline. The policy should state how many absences or instances of lateness are acceptable (and within what period of time).
Excessive lateness and absenteeism are the most common work rule violations and can be difficult to deal with.
A “no-fault” policy that grants employees a certain number of late time for any reason eliminates the problem of evaluating excuses. This policy allows employees leeway for traffic jams, unexpected errands, and just being late. Any employee who goes beyond the entitlement is then subject to discipline, no matter what the reason is for the lateness.
The best time to deal with the concept of lateness is at the beginning of employment. At orientation, the supervisor or human resources manager should explain and emphasize the organization's policy on tardiness, the disciplinary steps that may be taken, and the effect that excessive or chronic lateness will have on job evaluations and possible promotions.
Monitoring work hours. It is difficult and tedious for employers to monitor an employee's every move. If the layout of a particular workplace makes it difficult for supervisors to know when employees are arriving or leaving or how long they're taking for lunch, an employer may want to detail procedures for supervisory monitoring of work hours. For instance, if the organization uses a time clock, the procedures and rules governing its use should be made clear.
Docking. It is a common practice to “dock” nonexempt, hourly employees for lateness, which simply means paying the employee only for time actually worked.
The Fair Labor Standards Act (FLSA) allows employers to round starting and stopping time up or down “to the nearest twelfth, tenth or quarter of an hour.” However, the time must be averaged out over a specific period (e.g., a pay period) so that employees are paid for all time actually worked. As long as employees are fully compensated for all the time they actually work, this practice will be accepted unless it is used in such a way that, on average, employees are not properly compensated for all the time they have actually worked.
Employers may not dock exempt employees' wages due to lateness. The FLSA and most state laws prohibit reducing wages for any exempt employees. However, employers may require exempt employees to make up the missed time. If the Department of Labor becomes involved due to an employer's docking of exempt employees, they may take away exemptions for all employees in that class and require overtime to be paid retroactively and prospectively toall in the exempt status. It is better to handle lateness problems with exempt employees through disciplinary action.
Use of intermittent FMLA leave. When an employee takes FMLA leave intermittently, the employer must account for the leave using an increment no greater than the shortest period of time that the employer uses to account for use of other forms of leave. However, the increment of time may not be greater than 1 hour. An employee’s FMLA leave entitlement may not be reduced by more than the amount of leave actually taken, meaning, if an employee leaves during the last half-hour of his or her shift for an FMLA-covered event, the employee may not be "docked" a full hour of FMLA leave (even if this is the shortest period of time that the employer uses to account for use of other forms of leave).
Please see the national Leave of Absence section.
Every employer should have a policy that addresses all of the issues that surround sickness. Consider the following questions when evaluating or implementing your attendance policy:
Who should be notified when an employee is sick, and when? Experience has shown that having absent employees report their absence directly to their immediate supervisor tends to reduce the absentee rate. This may be a nuisance to the supervisor, but it usually discourages employees from having others call on their behalf or by simply leaving a message. The policy should also state when an employee should notify his or her supervisor and how often he or she must call in (e.g., every day for short absences, or every week during an extended absence).
What disciplinary action may be taken? Clearly define what constitutes an unacceptable level of absenteeism, what disciplinary steps will be taken, and under what circumstances an employee's absenteeism rate reaches that level.
When is a medical excuse or medical release required? If an employee has been absent for several days due to sickness, will a signed medical form be required for that person to return to work?
Remember to include the GINA safe harbor statement in all requests for a doctor's note in order to avoid claims of genetic discrimination.
It is critical to coordinate your attendance policy with other company policies such as sick pay, leave of absence, personal/family, disability, jury, bereavement, and military leave as these issues sometimes overlap. Verify that all of your policies comply with federal and state laws and are applied equally and consistently to all employees.
No-fault policy. A no-fault attendance policy is similar to a no-fault lateness policy. Employees are allowed a specified number of absences within a specified time period. Once that number of absences is exceeded, disciplinary procedures automatically are instituted.
There are many solutions to attendance problems; some are proactive, others are reactive. Proactive solutions include offering a compressed workweek, flextime, job sharing, rewards, and telecommuting. Proactive solutions should be tried, if possible.
Compressed workweek. A popular alternative to rigid work schedules and flextime is the compressed workweek. Employees work the same amount of hours, but do so in a different manner. For example, instead of working five 8-hour days for a total of 40 hours, the employee works 9 hours, four days a week and only 4 hours on the fifth day for a total of 40 hours (i.e., the employee gets every Friday afternoon off).
Whether participating in flextime or a compressed workweek situation, the time off allows employees to schedule appointments with doctors, run errands and take care of personal business on their own time instead of asking for time off and creating scheduling or coverage problems.
Flextime. This policy allows workers to set their schedules according to their individual needs as long as they work a specific number of hours per day and are in the workplace during a core period (e.g., 10 a.m. to 4 p.m.). Most flextime policies require the worker's hours to be regular, but some allow the employee to begin and end the workday at will, as long as the core and required hours are worked daily.
Job sharing. Two or more employees might share a single job. Some employers require core hours that must be shared by both employees and require both employees to attend team, department, and company meetings. Please see the national Part-Time Employee section.
Telecommuting. Telecommuting allows individuals to work at home some of the time, communicating with the workplace through phones and computers. Please see the national Telecommuting section.
Sometimes proactive solutions do not work and employers must resort to reactive solutions such as discipline and termination.
Discipline. For any possible discipline or discharge resulting from an attendance problem to be effective, the policy must be made known to all employees and consistently applied, spelling out how many absences, and within what time period, will call for disciplinary action. If an employer normally uses a progressive discipline system, its steps should be followed for attendance offenses. The employer may take into consideration any extenuating circumstances, but this also should be done with consistency.
To avoid legal problems, all disciplinary procedures should be documented and applied uniformly to all employees. Employees taking legally protected leave, such as FMLA leave or leave given as a reasonable accommodation under the ADA, may not be disciplined for taking such leave.
Termination. Extremely poor attendance or excessive lateness may be cause for dismissal. The facts or circumstances of each case, however, should be carefully weighed. Employers should consider the duration and frequency of the attendance problem, the reasons for these problems, whether they were communicated properly, the kind of work done by the employee, comparison of the employee's record with those of similar employees, whether the policy was clearly made known to employees and applied in a fair and consistent manner, and whether the employee was progressively warned about possible consequences if the problem did not improve.
Practice tip: No matter what type of solution is used, it is always a good idea to stress the importance of attendance by including it in employee evaluations.
Last reviewed on October 31, 2016.
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