STRATEGIES FOR ATTACKING ATTENDANCE CONTROL ISSUES

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Root Of The Attendance Problem

• Increase in “use it or lose it” policies• Low morale• Lenient implementation of policy• Abuse of legally protected absences


Correcting The Problem

• Appropriate (realistic) attendance policy• Consistent implementation by managers• Take advantage of recent FMLA regulatory

changes• The “softer side”: employee friendly benefits/

incentives

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REVAMP YOUR ATTENDANCE POLICY

(HOW TO MAKE IT WORK FOR YOUR ORGANIZATION)

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Revamp Your Attendance Policy

• Evaluate employees with poorest attendance– Scope of problem (e.g., department-wide, location-

wide, shift specific)– Consider timing (e.g., summer)– Impact on critical time period (e.g., increase in

manufacturing)



• Consider the culture of your organization– Morale issues

Employees with lower morale have higher absenteeism, especially for reasons other than illness

– Consider whether employees are engaged in their jobs

– Creative solutions? Telecommute; flextime



• Examine types of time off permitted under current system– Permitted by policy– Permitted by practice– Ad hoc decision-making



• Consider possible abuse of protected leave of absence:– FMLA– State leave law– ADA reasonable accommodation

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ATTENDANCE POLICY DRAFTING OPTIONS

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Attendance Policy Drafting Options

• Traditional sick day policy– Requires employees to justify absences– Requires resources to actively manage system– Risk: Managers aware of employee medical

condition Potential ADA “regarded as” disabled claims



• Traditional sick day policy (con’t)

– EEOC v. Dillards, Inc., 2008 CV 1780 (S.D. Ca., Sept. 29, 2008) Complaint alleges violation of ADA where employer

requires employee to provide doctor’s note stating the specific nature of the employee’s medical condition or illness in order to obtain approved absence;

EEOC argues request for information is not job related or consistent with business necessity



• Paid time off policy– Straight-forward implementation– Increased flexibility for employees– Risk: Potential increase of abuse due to lack of

verification



• Other considerations:– Different policies based upon employee

classification/department– Policy of no sick days– Encompass all aspects of attendance (lateness,

early departure, extended lunch)

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DEFINE CONSEQUENCES OF TAKING TIME OFF

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Define Consequences Of Taking Time Off

• General statement as part of positive code of conduct– Include statement identifying attendance as key

expectation– Address attendance violations in general

progressive disciplinary system



• Point (occurrence-based) system– Violations result in full or partial points– Create time frames for “active life” of violation– Many variations, including points for failure to give

proper notice of an absence– No points for legally protected absences



• Traditional fault-based system– Discipline based upon unexcused absences– No violation for excused/scheduled absences– No violation for legally protected absences



• Traditional fault-based system (con’t)

– Establish call-out procedure– Establish criteria for “excused” absence– Establish criteria for “scheduled” absence



• No-Fault based system– Discipline occurs, regardless of excuse, prior

notice and/or physician’s approval– No violation for legally protected absences– Reserve discretion for absence resulting in

termination?



• No-Fault based system (con’t)

– EEOC consent decree – Verizon EEOC maintained that the employer’s no-fault

attendance policy violated the ADA because employees were “charged” for absences due to ADA-covered disabilities

EEOC required employer to provide, as a reasonable accommodation, an exception for such absences under the no-fault policy

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POLICY CHANGES TO IMPROVE OVERALL

ATTENDANCE

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Policy Changes

• Consequences for managers:– Managers should be accountable for employee

attendance (except protected absences)– Potential discipline or reduced annual increases

where department has excessive absenteeism– Potential risk: Managers may under-report

absenteeism


Policy Changes

• “Use it or lose it” policies– More effective when fewer sick days are offered– May be tempered by a “buy back” provision of all

or percentage of unused sick days Potential state and federal tax issue

– State law concerns: “use it or lose it” may not be permitted in some jurisdictions (e.g., California)


Policy Changes

• Prohibit advancing of sickor paid time off days

• But, if permit advancing of days:– Require employees to pay back used but

unearned days on termination of employment Payback from paycheck may be limited by state

law; some states require written authorization Potential FLSA issue

– Limit right to advance days to employees with solid performance/attendance record


Policy Changes

• Require “stacking” of various violations– Independent tracks for violations of attendance,

call-out procedure and lateness/early departure invites abuse

– Escalate levels of discipline by combining similar or even unrelated offenses


Policy Changes

• Include timing limits– PTO policy: percentage of days must be taken in

1 week increment– Sick day policy: prohibit use of sick days to extend

vacation; holiday (before or after)– Require use of days during designated

shut down times


Policy Changes

• Reduce or eliminate “give back” provisions (e.g., for every ‘x’ months of good attendance, disciplinary warning is removed from file)


Policy Changes

• Reduce or eliminate ability of employee to take additional, unpaid absences after all paid absences under policy are exhausted (both in policy and in practice)


Policy Changes

• Reduce number of disciplinary levels

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ADDITIONAL COMPONENTS

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Additional Components

• Address payment of sick days/paid time off days upon termination– Same or different standard for termination and

resignation– Prohibit use of days during notice period of

resignation– State law may limit right to hold back payment on

termination



• Voluntary termination: “no call, no show”– Appropriate number of days– Limit inquiry as to reason for absence



• Interplay of incentive programs– Various of types

Gift cards; gas cards Bonus pay

Risk: may need to be included in regular rate of pay for purposes of calculating overtime

Leave early on Fridays; play “hooky” days Emphasize attendance as factor in promotion



• Interplay of incentive programs (con’t)

– Success depends upon: Sufficiency of reward Timing of reward



• Other documents should support attendance requirements– Job description– Department-specific protocols– Performance evaluations



• Presenteeism issues– Fear of discipline for missing work and having too

much work may increase number of sick employees reporting to work Lowers productivity Spread of disease



• Presenteeism Issues (con’t)

– Best practices to consider: Flu shot program Wellness programs Educate employees on proper usage of sick days Encourage sanitary practices at work

– Temporary suspension of discipline during period of high risk (e.g., swine flu)



• Donating Paid Time Off Programs



• Emphasis of compliance with call-out procedures, including in connection with FMLA covered absences

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IMPLEMENTATION ISSUES

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Implementation Issues

• Notify employees of policy changes– Potential state law issue if policy change results in

reduction in total paid time off benefits available or takes away prior earned benefits

– Advance notice may be required for both legal and employee relations reasons



• Establish mechanism to track attendance– Documentation critical– FLSA disclaimer to address tracking attendance

for exempt employees– Require in-person call-out procedures, not

automated system



• Strict no-call, no-show policy• Train managers on consistent implementation

and elimination of ad hoc decision-making



• Union considerations prior to implementation– Obligation to provide notice and bargain upon

request Broad management rights clause may permit

unilateral implementation Waivers narrowly construed Benefit to providing notice to union in absence of

CBA obligation

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LAWS IMPACTING ATTENDANCE ISSUES

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Laws Impacting Attendance Issues

• FLSA– Tracking attendance for exempt employees

Risk: potential evidence of non-exempt status Reduce risk: identify that tracking is for benefit or

client billing purposes



• FLSA (con’t)

– Docking pay versus docking sick day banks of exempt employees

– Limited exception: Permissible to dock pay of exempt employees in full day increments where employee has exhausted available sick days or takes sick days prior to being earned, so long as pursuant to a bona fide sick leave policy



• FLSA (con’t)

– Policy regarding clocking in and clocking out Require logging in at beginning of day and logging

out at end of day (same for meals/breaks) Prohibit working “off the clock” (may not perform

work prior to clocking in or after clocking out)



• FMLA– Impact of FMLA on attendance issues:

FMLA covered absences are protected absences (cannot discipline for absences)

Limits on employer’s ability to secure physician’s notes for certain chronic absences

Approved intermittent/chronic conditions create potential for attendance abuse



Hypothetical:Employee is out of work for 3 days. Upon her return, she receives a warning. At no point does employee state the reason for the leave. Three weeks later, employee is away from work again and is terminated for excessive absenteeism. Now, employee claims that she should not have been terminated because the 3 day period several weeks prior was covered by the FMLA. Are the employee’s absences protected?



Hypothetical:Employee has previously provided medical certification to support intermittent FMLA leave. Several months have passed and now, in the summer, the absences begin to frequently occur on a Monday and/or Friday. What is an employer permitted to do to address suspicious pattern of absenteeism?



Hypothetical:Employee is disciplined for excessive lateness. The supervisor’s write-up discusses 2 days when the employee was late due to migraines and 5 days when the employee was late but the excuses were related to car problems and getting her taxes done.May the supervisor discipline the employee?



• FMLA (con’t)

– May an employer obtain a doctor’s note for each intermittent FMLA absence? Smith v. CallTech Communications, LLC, No. 2:07-

cv-144, 2009 U.S. Dist. LEXIS 48518 (June 10, 2009) Employee terminated when she could not produce

doctor’s note to substantiate subsequent intermittent FMLA absence within 3 days of employer’s request



• FMLA (con’t)


cv-144, 2009 U.S. Dist. LEXIS 48518 (June 10, 2009) Court held employer “clearly was entitled to some form of

medical documentation for [the plaintiff’s] absence even though she had been approved for FMLA leave . . . and had verbally informed her supervisor that her absences were related to her condition.”



• FMLA (con’t)


cv-144, 2009 U.S. Dist. LEXIS 48518 (June 10, 2009) However, court held that employee needed to be provided

a reasonable amount of time; three days was not reasonable as a matter of law

Open issue, however, as to whether this holding would permit an employer to require a doctor’s note for each subsequent FMLA absence



• Americans with Disabilities Act– Obligation to provide time off from work as a

reasonable accommodation to disabled individuals Results in protected absences as exception to

discipline under attendance policy – Coordinate with leave of absence policy to address

long-term absences



• Remove/alter maximum leave language from LOA policies – Add reference in policy to availability of leave as

reasonable accommodation where employee: is not eligible for FMLA has exhausted leave under FMLA/Company Policy

Note: EEOC enforcement position finds that maximum leave policies violates ADA



• Implement protocol at end of employee LOA– Inquire as to employee’s ability to return – Offer of potential additional leave as a reasonable

accommodation– Offer of other reasonable accommodations as may

be needed upon return from leave


Final Thoughts: Keys To Curbing Absenteeism• Realistic attendance policy• Dissemination of policy to employees• Consistent implementation• Manager training• Compliance with laws protecting absences

STRATEGIES FOR ATTACKING ATTENDANCE CONTROL ISSUES

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