By Robin Thomas, J.D.
You've been here before. An employee uses up all of his vacation and sick days in the first six months of the year and then still needs additional time off. Do you have to continue giving him the leave? At what point do the absences become excessive and trigger disciplinary action?
Most employers struggle with these questions, and the answers are not always clear-cut. In fact, they depend on your attendance policy and whether the employee is protected under the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA).
FMLA and ADA Protections
Let's address the legal issues first. If the absences are required for reasons covered by the FMLA or ADA, they may not be counted against the employee as excessive even if they exceed your policy limits. The FMLA allows eligible employees to take up to 12 weeks of job-protected leave for their own serious health condition or to care for a seriously ill family member. In addition, the ADA requires employers to give workers time off as an accommodation for their disabilities, for example to seek treatment, and does not limit the amount except when the accommodation becomes an undue hardship.
As a result of these protections, you may not count FMLA or ADA leave time under "no fault" attendance policies, i.e. policies that allow only a set number of absences, and no more, regardless of the reason. Similarly, you may not discipline or terminate an employee for absenteeism that results from such legally protected leave. In addition, under the ADA, you may have to accommodate a disabled employee by allowing more unpaid leave than is provided under your normal absence policy. However, this requirement can be overruled if it would impose an undue hardship on the operations of your business.
Best practices for addressing absenteeism
So, what type of policy should you have to help control absenteeism? Generally, there is no hard and fast rule about how many absences must occur before they become "excessive." Most employers set policy based on operating conditions and industry standards. Typically, authorized absences that are properly taken under established attendance and leave policies are not regarded as excessive.
Thus, for example, if your vacation and sick leave policies provide 20 paid days and your employee has used 19 of these days, this amount of time off should not be considered excessive, even if the absences occurred within a short period of time. Alternatively, if your policy only allows 15 paid days off, then any additional days taken may be excessive, unless they are protected by the FMLA or ADA.
Some organizations shy away from rigid rules and prefer more general policies that permit supervisors to make individual determinations about what constitutes excessive absenteeism. For instance, these employers may evaluate how the absenteeism affects a particular department and its productivity. While this approach has appeal for its flexibility, it clearly is prone to inconsistencies that can easily lead to charges of discrimination or wrongful discharge.
Still, any policy approach you use should be flexible enough to accommodate differences based on job classification or departmental need. For example, you may be willing to allow more time off to exempt management and professional employees because they are given more independence and often work long hours.
Clear policy supports disciplinary action
Either way, you need a clear policy that spells out attendance and punctuality expectations and job requirements. Once you have such a policy in place, the vast majority of your employees will abide by it. Accordingly, the best way to manage absenteeism is to focus on the individual problem employee and then follow a progressive discipline program.
For example, your supervisors should put the problem employee on notice, provide counseling about improving attendance, and document the warnings and steps taken. Then, if the absenteeism continues, you are in a strong position to take needed corrective action to discipline, or even terminate, according to your normal policies.
(We offer a free model Attendance and Punctuality Policy, which includes a policy statement, management rationale, and legal references.)
Robin Thomas, J.D., is Managing Editor for Personnel Policy Service, Inc., 159 St. Matthews Avenue, Suite 5, Louisville, KY 40207, and can be reached at email@example.com, or 1-800-437-3735. Personnel Policy Service markets group legal benefit services and publishes HR information products, including the Personnel Policy Manual and HR Matters newsletter. This article is not intended as legal advice. Readers are encouraged to seek appropriate legal or other professional advice.