Jul 22, 2014

0814cover.jpgHow should employers manage the attendance of newly hired employees?

Managing a new employee’s attendance begins during the interview and hiring process, when HR and the hiring manager communicate their expectations for regular attendance and punctuality. Managers must understand the organization’s attendance policies and how to fairly apply those policies. They should also be familiar with state and federal laws governing attendance and leave, such as the federal Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA)

Attendance problems should be addressed quickly. The longer they go on, the more frustrated managers and co-workers will get.

The first step toward addressing the issue is to understand the cause of the absences. If they are related to a medical condition, determine whether the illness could be considered an ADA-protected disability. If so, the employer must engage in an interactive process with the employee to determine whether a reasonable accommodation can be made. Under the ADA, healthy employees may also be entitled to protections when a family member has a disability. In California, pregnant employees are afforded job protections upon hire for pregnancy-related absences.

If the absences aren’t related to a medical condition, counsel managers to reinforce the expectation of regular attendance and the potential consequences of not following attendance policies. Documented verbal warnings should clearly state the steps that the employee must take to correct the issue as well as a follow-up date when the manager or HR will review the employee’s progress toward this goal.

If the problem continues, you may need to take additional disciplinary action, including termination. A decision to terminate should comply with company policies and practices as well as with applicable state and federal regulations.

As for questions of pay, since a nonexempt employee is typically only paid for actual time worked, any hours missed would be unpaid. For exempt employees, however, the matter of pay is more complicated. Partial-day deductions from pay are prohibited—except for intermittent FMLA leave. The federal Fair Labor Standards Act permits deductions from an exempt employee’s pay once they have exhausted their company-provided sick leave in full-day increments.

—Edward Yost, SPHR-CA

How does an employer-initiated schedule reduction affect an employee on intermittent Family and Medical Leave Act (FMLA) leave?

When an employer is required to reduce an employee’s scheduled hours because of a decrease in business, the administration of FMLA leave for an employee who is using it on an intermittent basis can become complicated. The reduction in hours raises questions regarding the employee’s entitlement to leave and how the employer tracks intermittent leave.

Regarding the entitlement to leave, the FMLA regulations provide guidance on calculating the amount of leave available for an employee using time intermittently or on a reduced schedule basis. Employees are entitled to the number of hours equal to their normally scheduled weekly hours multiplied by the 12 weeks of leave allowed by the FMLA. If an employee works a fluctuating schedule, the employer should review the 12 months prior to the beginning of the leave period to obtain a weekly average of hours worked; this can be used to calculate the employee’s leave entitlement. Therefore, the number of hours available to an employee on an intermittent leave basis is established at the time the leave begins, and the reduction in work hours doesn’t impact the worker’s entitlement to leave.

Tracking the leave time that employees take becomes more complicated as well, since the scheduled hours have been reduced. Employers may account for leave in increments no greater than the shortest period in which they account for other absences, such as sick and vacation days. More important, an employee’s entitlement may not be reduced by more than the amount of leave actually taken, according to FMLA regulations.

For example, suppose an employee was scheduled to work 30 hours a week at the beginning of the leave. However, due to a business necessity, his hours are reduced to 25. Only the hours missed within this new 25-hour schedule will count toward the worker’s entitlement.

The schedule reduction comes into play again the following FMLA calendar year when the amount of leave available for the employee is calculated. An employee working 25 hours a week would be entitled to 300 hours (12 weeks × 25 hours) of intermittent or reduced schedule leave.

—Edward Yost, SPHR-CA


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