THIS ARTICLE FIRST APPEARED IN HRLAWS.COM’S TENNESSEE EMPLOYMENT LAW LETTER BY BUTLER SNOW’S Kara E. Shea.
Employee attendance problems are probably the most common reason for disciplinary action and discharge. Yet many employers pay surprisingly little attention to their attendance policies. I often see policies consisting of generic, vaguely worded language that looks like it has been cut and pasted without much thought to the content. That’s too bad because careful messaging regarding your attendance expectations and requirements can really help curb attendance issues as well as give you solid grounds for discipline and termination if those expectations and requirements aren’t met. This will put you in a better position to contest unemployment claims and defend wrongful termination claims. Having helped clients develop and tweak their attendance policies over the years, I have come up with a list of suggestions that hopefully will inspire you to give your own policy a once-over to see if it is doing the job for you.
First, you should make a statement about the importance of reliable attendance. Explain why it’s so important. Reliable attendance ensures you can provide excellent customer service. It ensures all of your colleagues will have the help and support they need to do their jobs. There are lots of different reasons you need to be able to count on your employees to show up for work, and some may be specific to your particular business. Tell them why you need them to be there.
For almost all jobs, reliable attendance will be an essential job function. You should say this in your policy as well, keeping in mind that your attendance policy may be relevant later in determining what types of accommodations you may be required to make for employees covered by the Americans with Disabilities Act (ADA).
You also should state that, to the extent possible, appointments and other outside-of-work commitments should be scheduled outside of the employee’s scheduled work hours. If that isn’t possible, the employee should make an effort to schedule them so they don’t conflict with important work events (deadlines, presentations, meetings, and so forth).
Notice is key
Of course there will be reasons employees will need to miss work, so you need to let them know your expectations in that regard. First and foremost, you need to lay out very clearly your notice requirements. I see a lot of policies that simply say employees must call in prior to their shift. But I don’t think that is clear enough guidance for employees or good enough protection for employers. My basic rule of thumb is, employees should be required to give as much notice of absences as they possibly can. If they have a doctor’s appointment two months from now on a Tuesday, or their niece is graduating from college next May, they shouldn’t wait until the day of the event to let you know they won’t be coming to work. They should tell you as soon as they know for sure about a future absence. Your policy should tell them that and let them know last-minute notice of long-planned absences may result in the absence being unexcused.
Of course, some absences truly are unpredictable and last-minute, such as waking up to a child with the flu or a car that won’t start. In those instances, telling employees they should call in as soon as they can before their shift or at the beginning of their workday is fine. Let them know that unless they are in some truly dire situation in which they can’t call in before or at the beginning of their workday—and this will be rare—waiting to tell you the deal after they arrive late to the office isn’t going to cut it.
However you decide to handle notice for unforeseeable absences, be specific about when and how employees are supposed to let you know. Can they leave a voicemail or send an e-mail or text, or do they need to get someone on the phone? That will likely depend on the nature of your business and the nature of their job—for instance, are you going to need to call someone in to replace them for the day? Make sure you have provided them with appropriate contact information for whatever method you designate. You also should state that failure to provide appropriate notice may lead to disciplinary action, even if the absence would otherwise be excused or even protected by law. If you require a doctor’s note or other verification of the reasons for an absence or a doctor’s return-to-work note for employees who have been absent because of illness or injury, you should state that in your attendance policy.
Coordinate your policies
Your attendance policy also should mention how it interacts with your paid leave policies. Too often, employees—and some employers—think that if they have paid leave available, they can come and go as they wish with no ramifications. But that isn’t the case. You can require employees to abide by your attendance policy when using paid leave, including providing an appropriate amount of notice for the absence. Also, if they tend to take their paid leave in a problematic way—such as taking sick leave every Friday before a long weekend, failing to give advance notice of a requested day off, or missing every meeting or call leading up to an important event—that may be grounds for disciplinary action. These issues should be addressed in both your attendance policy and your paid leave policies.
You also should explain the ramifications of missing work when no paid leave is available. As far as how many attendance “strikes” an employee should be allowed, that will be specific to your business, your preferences, and, perhaps, to the specific job. Some of my clients implement a very rigid “points” policy, with the advantage being that everyone—supervisors and employees—knows the rules and can implement the policy consistently. Other employers prefer a more flexible approach, reserving discretion to make case-by-case decisions. Either way, however, you need to let employees know that violations of your attendance policy—including failure to give proper notice—will lead to disciplinary action, up to and including termination.
Keep in mind that some absences may be protected by law. That would include, for instance, absences covered by the Family and Medical Leave Act (FMLA), the ADA, military leave, or jury duty leave. You should state that such absences won’t be considered attendance policy violations, and encourage employees to let you know if they think their absences may be covered by one of those policies. Even if you can’t count the job-protected absence itself against an employee for disciplinary purposes, failure to give notice is a different story. For instance, if an employee has an FMLA intermittent leave certification for migraines, she can and should be required to give appropriate notice under your attendance policy if she needs to miss work. Be careful, however, because other aspects of your attendance policy may not apply to an FMLA-covered situation. For instance, even if you typically require doctor’s notes for absences, you can’t require a doctor’s note for each absence under an FMLA certification that is already in place.
Don’t play favorites
Finally, remember that it’s critical to enforce your policy in a consistent and nondiscriminatory fashion. You can set the rules, but be sure you are applying them to everyone and aren’t making exceptions for favored employees, and make sure your supervisors get that message loud and clear. If in doubt when drafting or implementing an attendance policy that is right for your organization, it’s always best to consult with an experienced employment attorney.