Legal Ease
Employee Attendance – It Shouldn’t Be Optional
By Richard D. Alaniz, Alaniz Law & Associates I
f there is one workplace issue that bedevils virtually every employer in the country on a daily basis it is the dilemma of employee attendance - perhaps more appropriately, the lack of
attendance. Despite the rapidly
expanding mandatory paid leave laws and the adoption of generous paid- time-off policies by a large number of employers, employees continue to find reasons for not coming to work. In fact, worker absences result in the loss of over $225 billion in lost productivity to our economy annually. That is almost $1,700.00 per employee. In addition to the lost productivity, there are other considerable business impacts from absenteeism. The quality
of products
and/or services is affected because of understaffing. It lowers morale because fellow employees have to fill in or do extra work. Ultimately, unchecked absenteeism can lead to higher turnover.
Addressing Absences Most employers address habitual absenteeism and/or tardiness with disciplinary action, including termination in egregious cases. With over 7 million job openings and the lowest unemployment rate in almost 50 years, the loss of employment is not seen as very significant by an increasing number of employees. In fact, in 2019 more employees voluntarily left a job than
in any year since 2001. Ever-
climbing state minimum wage rates have caused starting pay rates to rise dramatically in virtually all industries. Thus, replacing a good hourly wage is not that difficult when everyone is hiring and paying about the same. The threat of disciplinary action that could ultimately lead to termination is no longer the threat it once was.
96 ❘ February 2020 ® Employers have taken various
approaches to address the attendance problem. Some employers have used pay incentives, sometimes as much as $1.00 per hour, if the employee completes all scheduled hours, including overtime hours in the workweek. Some have used
substantial lump sum bonuses
for perfect attendance over a specified period of time. Most employers that have used such bonuses have reported that they have a positive short-term impact on attendance, but it generally dissipates over time. The Fair Labor Standards Act requirement that such bonuses be included in total compensation for calculating the regular rate for overtime purposes has been administratively problematic for some employers, especially when the bonus covers an extended period. As a result, many employers have discontinued or avoided use of such monetary bonuses. In addition to cash bonuses, employers have tried a variety of other incentives for
problem with this approach is that regular attendance is not necessarily an essential function of every job. In some circumstances it could even violate the Americans with Disabilities Act and/ or a comparable state law if strictly applied. In most instances it would not pose an “undue hardship” on an employer for an employee’s absence to be accommodated. Except in unusual circumstances, the employee’s job functions could likely be performed by fellow employees or left to await his/her return. Also, almost all employers have leave of absence policies that clearly contemplate the unavailability of some employees for at least some period of time. These facts all undermine any claim that attendance is an “essential function” of most jobs.
perfect attendance, including gift cards, additional vacation days, paid time off or “bank time” to be used at will, as well as household luxury items such as televisions. These and similar types of incentives have also had some impact in reducing absenteeism in the short term, but no approach has been fully satisfactory. Nonetheless, many employers continue to use them in hopes of stemming poor attendance.
Attendance and the Americans with Disabilities Act There have even been efforts by a few employers to include regular attendance as an “essential function” of their jobs in order to try to hold employees more accountable and disciplinary terminations more defensible.
The
Steps to Take While no employer has yet found that silver bullet that will stop employee absenteeism in its tracks, there are several simple but time-tested steps that employers can take to improve employee attendance. Few employers set their attendance expectations clearly and forcefully from the very beginning of the employment relationship, during the hiring process and regularly thereafter. In addition to emphasizing the importance of good attendance in the onboarding process, the employee handbook, and/or a separate attendance policy that sets forth the attendance rules and procedures, there should be direct communication with the absent employee by his/her supervisor after every absence. If the absence is for an extended period, there should be communication during the absence as well. As long as the discussion focuses primarily
on the employee’s well-
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