March 6 Tip of the Week

No Fault Attendance Policies:  Are They Legal?”

One of the most difficult employee issues that employers deal with on a regular basis is employee attendance.  This is particularly true in today’s world where every employer seems to be chronically understaffed, making employee attendance even more important in order to get the work done.  In an effort to address chronic employee absences, some employers have implemented “no fault” attendance policies. 

While these policies are called “no fault” – in reality, they assign fault to any absence regardless of the reason for the absence.  Under a no fault attendance policy, an employee receives a point for any absence that they have during a specified period.  At the end of the period, the employee’s points (or absences) are totaled up and, if they hit a certain number, the employee will be subject to discipline under the policy.  Discipline can range from a verbal warning up to termination. 

On their face, no fault attendance policies appear to be a good tool to address employee attendance issues; however, in reality, these policies can be problematic for many reasons.  First, the policies do not consider the timing of the absences or the length of an employee’s absence.  An employee with a pattern of Monday and Friday absences is more likely to be abusing their sick time than an employee with a midweek absence due to a sick child.  Second, these policies may discourage employees from seeking medical care when they are sick and may encourage them to come to work when they are not feeling well.  Have just survived a pandemic where social distancing and quarantining were the rules of the day, employers should not be implementing policies that encourage employees to come to work under any circumstances and with total disregard for the fact that they may make their fellow employees sick.  A result, by the way, which will defeat the purpose of the policy, as more sick employees mean more absences. 

In addition to the practical reasons why no fault attendance policies may not be the answer to address employee attendance issues, there are some compliance issues as well.  Initially, it must be noted that, under certain laws such as the Americans with Disabilities Act, time off from work can be a reasonable accommodation for an employee with a disability.  The Family and Medical Leave Act provides employees with protected unpaid leaves for their own serious illness or to care for a family member with a serious illness.  Assessing points to employees who are out on FMLA leave could be viewed as a violation of the law or, at the very least, would form the basis for an FMLA interference claim by an affected employee. 

While these federal protections against the impact of no fault attendance policies have been around for a while, there is a new area of compliance that employers must be aware of when implementing a no fault attendance policy.  Many states have introduced paid sick leave laws and paid family leave laws that entitle workers in those states to take protected time off from work for their own or a family member’s illness.  These states view no fault attendance policies, which would assign points to employees exercising their right to such leaves as a violation of those laws.  In fact, New York State just recently passed a law that bans an employer from using a legal absence as part of a no fault attendance policy, deeming such actions as retaliation against employees for exercising their legal rights.  Similar protections exist in California and, given the increase in these types of state paid leave laws, will likely expand to cover other states as well. 

What does this mean for employers?  First, these changing laws underscore the need to be vigilant in terms of your employment policies and employee handbooks.  Annual reviews of the handbook or policy manual are important to ensure that your policies are compliant with the state of the law as it is – not as it was when the handbook or policy was drafted.  Second, at a minimum, employers should review their attendance policies to ensure that there are exceptions to the assessment of points for legally authorized absences under state, federal, or local laws.  Finally, employers should reexamine their use of no fault attendance policies.  Chronic attendance issues are typically symptomatic of other performance issues and, rather than singling out one aspect of an employee’s poor performance, employers should ensure that rigorous performance evaluation processes are implemented where employees are given timely and specific feedback regarding their job performance and provided with the opportunity for corrective action, including mentoring, training or other support.  These corrective actions are a more effective way to address employee deficiencies and are more likely to retain good employees and to eliminate bad employees who are resistant to the feedback. 

MyHRcounsel can assist you ensuring that your handbooks and employment policies are up to date and legally compliant with our handbook service.  We can also assist you in developing performance evaluation processes and procedures that will create better relationships between employees and supervisors and will allow for true corrective action.  Finally, we can help you negotiate an exit plan for employees who continually miss the mark and need to be separated.