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Vol. 45, No. 4
Know your rights and limitations.
If you have a staff member who is currently abusing your company’s absenteeism control policy, you know how frustrating it can be. What you may not know is just how much money that employee is costing your company. Commerce Clearing House Inc.’s 1999 Un scheduled Absence Survey estimates that excessive absenteeism costs corporate America somewhere in the neighborhood of $600 per employee annually—a hefty toll considering that not all absenteeism stems from legitimate illnesses.
You also may not be completely clear on what your rights and limitations are as a manager in disciplining these employees. Managers have increasingly become gun-shy in dealing with excessively absent workers for fear of legal liability. Indeed, the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA) both make you liable for punitive damages should you run afoul of their rules.
But it is important to remember that you have the right to discipline and fire em ployees for excessive ab sen t eeism—within certain guidelines. Here’s how to tackle the problem without putting you or your company in legal jeopardy.
Policies and Past Practices
The first place to look when addressing excessive, unauthorized absenteeism is your company policy. Many companies place caps on annual sick leave allowances; others refuse to write a policy for fear that the written document will limit their discretion in dealing with employees on a case-by-case basis. In addition, setting policy is difficult because companies need to determine the parameters of the program:
Will they measure actual days or “incidents” (i.e., an uninterrupted series of days off from the same sickness or injury)? Do they believe that a no-fault or an excuse-based system will be most effective? Will a rolling year or a calendar year serve as the optimal performance measurement time period?
Beyond the nuts and bolts of your written policy, you also must examine your past practices. If you are inconsistent in the application of your organization’s rules, a judge or arbitrator may determine that your fickle actions could justify a claim of discrimination or retaliation from a terminated worker.
What is excessive absenteeism?
There’s no easy answer, but juries typically consider one sick day per month, or 12 days a year, as a threshold. More than that and it’s likely that the discharge will be sustained; less than that and a plaintiff attorney may convince a jury that your decision to terminate was premature and possibly pretextual. Your best defense lies in a well-crafted policy and consistent past practices.
Turning the Problem Around
Fixing the problem can be accomplished in three steps:
Review your organization’s written policy with the help of legal counsel to ensure you retain the most discretion in managing this thorny issue.
Review your organization’s past practices (for example, all of the disciplinary actions and terminations related to unauthorized absence in the past two years) across departments, divisions and locations. Account for inconsistencies in prior decisions. Remember that you have the choice to change a policy or practice by notifying employees in advance and in writing.
Document substandard performance consistently.
The documentation itself should begin like this:
“Maintenance of good attendance is a condition of employment and an essential function of your job. To minimize hardships that may result from illness or injury, our company provides paid sick time benefits. However, periodic sick leave taken on a repeated basis may be viewed as abuse of the system. It is your responsibility to establish legitimate illness or injury to receive sick leave pay.”
Furthermore, list the dates and days of the week of any absences.
In addition, document the negative organizational impact that resulted from the individual’s unauthorized absenteeism:
“The number of incidents has disrupted the workflow in our unit and has caused the department to incur unscheduled overtime because others have had to carry the extra workload. In addition, a temporary worker had to be assigned to your area so that the deadline for the project could be met.”
In cases where the employee’s days off revolve around his regularly scheduled weekends, document the “patterning” this way:
“Our company defines a pattern as a frequent, predictable and observable employee action that repeats itself over time. All five of your occurrences were taken off around your regularly scheduled weekends and holidays. This ‘patterning’ therefore violates our organization’s absenteeism policy.”
Next, document your organization’s expectations, provide a copy of the policy, if applicable, and include the consequences of inaction:
“Janet, I expect you to immediately improve your attendance by minimizing any future occurrences of unscheduled, unauthorized absences. A copy of our attendance policy is attached. Please read it thoroughly today and meet with me tomorrow morning if you have any questions. If you meet these performance goals, no further disciplinary action will be taken. In addition, you will develop a greater sense of accomplishment in helping our department meet its production goals while minimizing staff rescheduling and last-minute overtime costs. Please understand, however, that failure to provide immediate and sustained improvement may result in further disciplinary action up to and including dismissal.”
Do you have the right to insist that employees provide you with a doctor’s note to substantiate an unscheduled absence? The short answer is yes: Employers may require medical notes from employees to receive pay from their sick leave accrual bank.
However, you must be consistent here. Asking one employee for a doctor’s note without asking all employees under similar circumstances could be viewed as unfair. The simple solution is to require doctors’ notes once a certain threshold of incidents has been met (for example, the note could be required for all occurrences after the fifth absence).
What about employees who provide you with doctors’ notes over and over again but who are still excessively absent? Do the doctors’ notes legitimize their excessive absenteeism? Not necessarily. Excessive absenteeism, albeit supported by doctor’s notes, still negatively affects the individual’s performance and may preclude that person from meeting an essential function of the job—regular attendance. As a result, the doctors’ notes, per se, won’t necessarily exempt the worker from receiving progressive discipline or being terminated.
Doctors’ notes may substantiate that the employee has a “serious health condition” as defined by the FMLA. Of course, the definition of “serious health condition” as well as who is covered by the act goes beyond the scope of this article.
What’s important to remember, however, is that FMLA-related leaves usually center around episodic or chronic conditions that require inpatient hospital stays, continuing treatment by a health care provider or a period of incapacity of more than three calendar days. More often than not, employees who take sick time do not necessarily meet the threshold of having a “serious health condition.” As such, the FMLA may have little impact on your decision to document excessive absenteeism in the form of progressive discipline.
On the other hand, doctors’ notes may preclude you from taking any adverse action (including progressive discipline or termination) against an employee for one key reason: In certain states, medical certifications need not identify the condition being treated unless the employee consents. Therefore, a doctor’s note will usually only tell you the date of the condition’s onset and its estimated duration—no more.
As a result, determining if an FMLA-qualified “serious medical condition” is at hand may be difficult. When in doubt, speak with legal counsel about your rights when you suspect that doctors are padding an employee’s file and allowing the individual to take excessive time off. Incidents like this need to be handled on a case-by-case basis.
Remember as well that it’s not a good practice to ask employees about what’s ailing them. Title I of the ADA defines a “disability” as a physical or mental impairment that substantially limits one or more major life activities, a record of such impairment or “being regarded” as having such an impairment. As an employer, you are only required to accommodate known disabilities. Therefore, prying information out of an employee may indeed saddle you with added burdens of accommodation. In short, respect the individual’s privacy and don’t ask for any specifics beyond what the employee chooses to share with you.
Excessive absenteeism and the ADA have another critical connection that works to your advantage. The ADA only protects a “qualified individual with a disability” who can perform the essential functions of the job either with or without a reasonable accommodation. An employee who is excessively absent may not be a qualified individual with a disability because regular attendance is an essential function of virtually every job. As a matter of fact, several courts have held that an employer cannot accommodate unpredictable or sporadic absenteeism.
However, situations may exist where employees could perform most job functions from home. In such cases, those individuals may be qualified under the ADA. The ADA will likely not pose a challenge to your ability to discipline or ultimately terminate an employee with excessive absenteeism problems. Again, there may be exceptions, and legal counsel should be sought. For example, individuals may be disabled with regard to the “major life activity” of working if they are substantially limited in their ability to perform either a class of jobs or a broad range of jobs as compared to the average person. As a result, a leave of absence may be a means of satisfying the obligation of “reasonable accommodation” under the law, and no discipline would be warranted. Such issues probably won’t arise that often, but you should be sensitive to the possibility of such claims.
With a refined policy in hand and a firm grasp of your organization’s past practices in terms of disciplining and terminating employees for excessive, unauthorized absenteeism, you should have the tools necessary to enforce your organization’s absenteeism control policy. With proper disciplinary warning language, you should be successful in according employees due process and withstanding legal challenges for wrongful termination or discrimination charges down the road. And with a greater understanding of the FMLA and ADA along with their obligations and limitations of em ployee protections and employer rights, you will be more successful in defining potential legal issues if they apply.
More importantly, however, you must remember that excessive absenteeism is usually not the problem—it is only a symptom of a problem: an employee’s refusal to hold himself accountable to report to work regularly. Before you go down the path of progressive discipline and, ultimately, termination, talk with the employee one-on-one. Explain the critical nature of the situation, ask what he would do if he were you to fix the problem and then ask for a verbal commitment that the problem will be minimized in the future.
Treating adults with dignity and respect via open communication gets the best results and should always be your first strategy when tackling this challenging workplace issue.
Paul Falcone is director of employment and development at Paramount Pictures in Hollywood, Calif. He is the author of three books published by the American Management Association, including 101 Sample Write-Ups to Document Employee Performance Problems: A Guide to Progressive Discipline and Ter mination (1999) and 96 Great Interview Questions to Ask Before You Hire (1997). This article represents the views of the author solely as an individual and not in any other capacity
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