Beware Of Using No-Fault Attendance Policies

Whenever I do employee handbook reviews for new clients, I make sure to always remove their no-fault attendance policies.  These are policies where discipline is automatic after a certain number of absences or a certain number of days of reporting to work late – regardless of the reason for the absence or tardiness. These policies could open an employer up to liability for violating state and federal law requiring reasonable accommodation for employees with disabilities, state and local law providing for mandatory paid sick leave, as well as various other protected leave laws.  For example, if you have a policy that disciplines employees who have more than three absences in a six-month period, you cannot count protected absences that are covered by applicable laws when determining whether an employee violated your attendance policy.

To be sure, absenteeism and tardiness present two of the most frequent, yet difficult, employee behaviors to discipline.  Typical issues include:

• Unexcused absences;
• Chronic absences;
• Unexcused or excessive tardiness; and
• Leaving without permission

While it is fine to have an absence policy and discipline employees for violating the policy, it is important that you do not take into consideration any absences or tardiness that are protected by applicable law, including:

• California’s paid sick leave law and applicable local law that provides for paid sick leave.* However, if an employee has exhausted all of his or her accrued paid sick leave, you can take into consideration any further sick days in applying your policy.
• The federal Family and Medical Leave Act (FMLA) and California Family Rights Act (CFRA)
• California’s New Parent Leave Act
• California’s Pregnancy Disability Leave (PDL) law
• The Americans with Disabilities Act (ADA) and Fair Employment and Housing Act (FEHA), which may require you to provide unpaid time off to reasonably accommodate an employee’s disability.

As long as you do not penalize an employee for taking days off or other leave to which they are entitled by law, the law does not provide how much absenteeism or tardiness you must endure before taking disciplinary action.  The main thing is to administer attendance standards in an equal manner, otherwise you may be open to discrimination claims.  For example, if you terminate an employee for having five unexcused absences in a 3-month period, and he or she later sues the company, you will need to show that you applied the same standard to other employees. If you didn’t fire other employees with the same number of absences (or more) in a similar timeframe, your termination reason may be deemed a pretext for unlawful discrimination.

*  Various other California cities have enacted their own paid sick leave laws which go above and beyond what California law requires.  As of this writing, those cities are: Berkeley, Emeryville, Oakland, San Francisco, City of Los Angeles, Malibu, Pasadena, San Diego, and Santa Monica. 

Employer Action Items:

• Remove any no-fault attendance policies from your employee handbook and other written policies.
• Be sure to record and track attendance accurately and consistently. The knowledge that you keep detailed attendance records may be enough to deter some employees from abusing leave policies.
• Keep attendance records for all employees in a single location, such as a binder or Excel file, where they can be updated daily.
• Depending on your company’s size and organization, your human resources staff, office manager, supervisors or any other designated employee can keep attendance records. Establish a system that makes sense for your company and stick to it.
• Apply your attendance and tardiness policies consistently to all employees.