Should Employers Enforce Perfect Attendance as Pandemic Subsides?

Allen Smith, J.D. By Allen Smith, J.D. May 21, 2021
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​Employers that suspended perfect-attendance policies during the height of the pandemic might reinstate them as the pandemic appears to wane in the United States. But they need to carefully consider how, when and whether to reimplement them.

Perfect-attendance policies usually offer bonuses, recognition, prizes or extra leave to encourage employees to regularly come to work on time, according to Paul Goatley, an attorney with Fisher Phillips in Louisville, Ky. 

Companies reimplementing the policies should be sure to comply with such laws as the Family and Medical Leave Act (FMLA), since employees with moderate to severe cases of COVID-19 may be covered by the FMLA. "Perfect-attendance policies can be an important tool for managing employee absenteeism and morale," said Jacqueline Prats, an attorney with Trenam Law in Tampa, Fla. "However, employers should keep in mind that enforcing a perfect-attendance policy against an employee who properly takes leave, including FMLA leave, because of COVID-19 can increase the employer's risk of a legal claim."

Moreover, perfect-attendance policies could convince employees to come to work even when they have COVID-19 symptoms, potentially spreading the virus through a workplace.

Employers should stay informed of the World Health Organization's evaluation of the global pandemic status, she said. "Employers may wish to base their decision to reinstate their perfect-attendance policies on when health authorities determine that the pandemic is over or when the risk of community transmission of COVID-19 has decreased," Prats said.

Benefits of Perfect-Attendance Policies

A perfect-attendance policy often has associated benefits, Prats noted. For example, employees with perfect attendance may receive bonuses or be able to erase previous absences from their disciplinary records by maintaining streaks of perfect attendance for certain periods.

Perfect-attendance policies are discretionary, unless part of a union labor agreement, Goatley noted. So employers have the right to suspend such policies entirely, in which case no one would get a bonus for perfect attendance. This would not be popular, he said, "but it would relieve employers of providing the benefit and make it easier to excuse absences that would otherwise count against employees."

Employers that suspend perfect-attendance policies should clarify that such suspension is not an excuse for poor productivity or a pretext to otherwise violate other policies, including those relating to sick leave and paid time off, said Adam Kemper, an attorney with Kelley Kronenberg in Fort Lauderdale, Fla.

"Most employers with such policies are not suspending any policies now," said Richard Greenberg, an attorney with Jackson Lewis in New York City. But if employers suspended a perfect-attendance policy during the pandemic, they are providing advance notice of reimplementation, he said.

"Most organizations will have a transition period back to pre-pandemic work life," Greenberg added.

"Expanded vaccination availability is a big consideration for whether it is time to reinstate attendance expectations," said Krista Mitzel and Ernie Mejia, attorneys with The Mitzel Group in San Francisco, in an e-mail.

[SHRM members-only toolkit: Managing Employee Attendance]

Exclusion of Protected Leave

Be sure perfect-attendance policies, once reinstated, comply with the FMLA and other laws.

"If an employer enforces a perfect-attendance policy against an employee who properly takes FMLA leave, it could result in depriving that employee of a benefit to which he or she would otherwise have been entitled," Prats cautioned. "This deprivation could result in liability for the employer."

The 6th U.S. Circuit Court of Appeals ruled in 2019 that leave taken under the FMLA must be treated the same as other forms of excused leave for purposes of administering a perfect-attendance policy, Goatley noted. For example, if vacation days, bereavement leave, jury duty, military duty and holidays are treated as excused under an employer's perfect-attendance policy, FMLA absences must be as well.

"The same reasoning likely applies in many other jurisdictions as well," Goatley said. "The treatment of protected leave as it relates to the administration of perfect-attendance policies should be outlined for employees in the company's handbook."

Any perfect-attendance policy should clearly exclude time out for disability accommodations, Greenberg said. "The policy should expressly state that protected absences are not counted as a negative."

The Families First Coronavirus Response Act (FFCRA) leave is not mandatory under the American Rescue Plan Act, but if an employer offers it, the business must do so within certain constraints, Prats said.

The FFCRA prohibits employers from discriminating in favor of highly compensated employees, full-time employees or on the basis of employee tenure. Enforcing a perfect-attendance policy against an employee who uses FFCRA leave, if the employer offers it, could invite retaliation or discrimination claims, she said.

In addition, employers may be subject to state or local laws that provide specific COVID-19-related protections to employees needing leave as a result of the coronavirus. "Enforcing perfect-attendance policies during the pandemic may run afoul of such state or local laws," she said.

"Employers may wish to include carve-outs in their perfect-attendance policies for absences that are protected by law," Prats noted.

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