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.)

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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 editor@ppspublishers.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.