Regular attendance is key to an organization’s success as well as to the job function of its employees. It is expected that employees will miss a certain number of days, hence paid time off (PTO) policies; however excessive absenteeism has continued to make an appearance on several HR hot topic lists. More and more, employers are spending a large amount of their time, frequently addressing attendance issues within their workforce.
Before becoming quick to point the finger and move straight to progressive discipline for excessive absenteeism, specifically with repeat offenders, it is imperative that organizations are educated on the federal and state laws regarding employee leave practices. This is especially important when it comes to state and local laws, as the rules tend to be even more employee-friendly.
Four federal laws (depending on employer size) are critical to employee absenteeism, which include: The Family and Medical Leave Act (FMLA); the Americans with Disabilities Act (ADA); the Uniformed Services Employment and Reemployment Rights Act (USERRA); and Title VII of the Civil Rights Act of 1964 (Title VII). It is recommended that employers consider each law prior to administering corrective action, denying an employee time off from work or docking an employees’ pay in accordance to the Fair Labor Standards Act (FLSA), specifically in regard to the employee’s attendance.
Employers must also keep in mind that state laws typically extend beyond federal laws which means additional rights and protections for employees who miss work. One law that could fall under this category is workers’ compensation. Non-compliance and violation of this law can result in costly consequences to the organization.
Other absences which state and federal laws protect include time off work to act as a panelist for jury duty as well as time off to practice and observe religion per an employee’s religious belief. Some state and local laws even acknowledge a “small necessity” leave law. This leave extends beyond the typical leave laws by allowing employees to attend their child’s school-related activity, volunteering as a firefighter, paramedic, or certified disaster service volunteer for the American Red Cross and being screened for breast cancer, among others. Of course the amount of time off and whether the absence is paid or unpaid is usually per the discretion of management.
So, with all of these employee-friendly federal and state leave laws in place, how does your organization control absenteeism without breaking the law?
The following steps will help your organization avoid the risk of litigation when it comes to absenteeism and attendance:
· Ensure your organization is educated on federal, state and local laws regarding absenteeism. Make it a habit to review state and local labor law regulations regularly and update policies accordingly.
· Develop an absenteeism policy that clearly sets forth which absences are allowed, and what behavior will subject an employee to discipline.
· Communicate the absenteeism policy consistently and administer the policy fairly to all employees to avoid claims of discrimination. House the policy in an employee handbook to give to new employees.
· Train management and leadership on how to deliver the absenteeism policy effectively and develop a checks and balances approach to ensure the policy is being applied fairly across all departments.
· Ensure your organization keeps accurate records regarding employee attendance. Casual or informal timekeeping practices can cause lawsuits.
· Avoid taking any adverse employment actions after an employee returns from FMLA, ADA or other forms of job protected leave. Even if the action is related to the leave, an employee may make a case for retaliation or discrimination.
Creative Business Solutions is very knowledgeable on federal and state job protected leaves of absence and would be pleased to assist you with these often times confusing and complicated laws or with any other HR compliance issues your organization may need assistance with.