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The Employee Attendance Dilemma By Richard D. Alaniz, Alaniz Law & Associates


in sick, but employee attendance has long proven a nettlesome issue for employers. The average number of sick days per employee annually is 5.2, and one in four workers admit to being late for work at least once per month. Survey data indicates that an average of 1.5 million workers per month missed work due to personal illness. Absent and tardy employees result in over $225 billion in lost productivity each year. Absenteeism has significant and costly effects, such as diminished product quality or business services and weakened employee morale among those employees forced to pick up the slack for missing workers. A SHRM study found that on average, supervisors spend between four and five hours per week dealing with absences. That equals more than 5 weeks per year of a supervisor’s time!


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Employers have often historically responded to absenteeism through progressive discipline, but this approach is proving less effective in recent times. With an estimated nine million job openings available and employees jumping to new jobs at record pace. In these circumstances, the threat of termination loses much of its impact, and it has forced employers to be more tolerant of absence that would otherwise result in disciplinary action. Employees know that another job with competitive pay and benefits is likely available just down the road.


Employers have also historically 38 ❘ June 2022 ®


s one might expect, the pandemic made 2020 and 2021 unique years for workers calling


used incentives to address attendance problems. Some have used hourly pay incentives, while others have used lump sum bonuses for perfect attendance over a specified period. Other incentives for


perfect attendance have included


such things as flat screen televisions, additional vacation days, additional paid days off and gift cards. Anecdotal reports from employers suggest such bonuses generate short-term success but this generally dissipates over time. One drawback of such bonuses is the administrative headache of calculating the regular rate for overtime purposes under the Fair Labor Standards Act (FLSA) to account for the bonus payment. This can generate substantial liability over time if not handled correctly. Despite their limitations, many employers continue to use incentives to incentivize better attendance.


In recent years employers have


begun to more frequently include regular attendance as an “essential function” in some job descriptions as a means of rendering an employee “not qualified to perform the job” as the basis for termination where an employee is regularly absent. This strategy has been generally successful in circumventing Americans with Disabilities Act (ADA) claims, as federal courts consistently conclude the employer’s reasonable judgment regarding what job functions are truly “essential,” should be accepted.


Nonetheless, there is no perfect solution to attendance issues, and thus, employers must be proactive in setting their


expectations clearly during the onboarding process. In employee addition to


being an integral part of the employee handbook,


attendance


policies should be emphasized during employee meetings or town halls. Employers must also ensure their supervisors receive sufficient training on managing absenteeism. Under most attendance policies employees generally must call their direct supervisor to report an absence. That personal call presents the opportunity for the supervisor to tell the employee that he or she will be missed and briefly describe the impact of their absence on the workplace. When the employee returns, the supervisor should make a point of welcoming them back, encourage good attendance in the future, and again discuss the impact on fellow workers. The conversation should not take on an accusatory tone since most absences are for legitimate reasons. If the absence is for an extended period, the supervisor should maintain communication with the employee during the absence. The focus of the contact should always be the employee’s well-being. Any implication that the supervisor is pressuring the employee to return could lead to claims of interference with legally established leave under the ADA, Family and Medical Leave Act (FMLA), and/or a similar state law.


A final issue to consider in addressing


employee absences is the possibility that the poor attendance is symptomatic of a more serious problem the employee may be experiencing. Frequent absences could indicate drug or alcohol dependency issues. The absence could


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