United States: All Present And Accounted For? If Not, You May Want To Rethink Your Attendance Policy

Last Updated: August 28 2019
Article by 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.

Attendance matters

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.

This article first appeared in HRLaws.com.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Topics
 
Related Articles
 
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Mondaq Free Registration
Gain access to Mondaq global archive of over 375,000 articles covering 200 countries with a personalised News Alert and automatic login on this device.
Mondaq News Alert (some suggested topics and region)
Select Topics
Registration (please scroll down to set your data preferences)

Mondaq Ltd requires you to register and provide information that personally identifies you, including your content preferences, for three primary purposes (full details of Mondaq’s use of your personal data can be found in our Privacy and Cookies Notice):

  • To allow you to personalize the Mondaq websites you are visiting to show content ("Content") relevant to your interests.
  • To enable features such as password reminder, news alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our content providers ("Contributors") who contribute Content for free for your use.

Mondaq hopes that our registered users will support us in maintaining our free to view business model by consenting to our use of your personal data as described below.

Mondaq has a "free to view" business model. Our services are paid for by Contributors in exchange for Mondaq providing them with access to information about who accesses their content. Once personal data is transferred to our Contributors they become a data controller of this personal data. They use it to measure the response that their articles are receiving, as a form of market research. They may also use it to provide Mondaq users with information about their products and services.

Details of each Contributor to which your personal data will be transferred is clearly stated within the Content that you access. For full details of how this Contributor will use your personal data, you should review the Contributor’s own Privacy Notice.

Please indicate your preference below:

Yes, I am happy to support Mondaq in maintaining its free to view business model by agreeing to allow Mondaq to share my personal data with Contributors whose Content I access
No, I do not want Mondaq to share my personal data with Contributors

Also please let us know whether you are happy to receive communications promoting products and services offered by Mondaq:

Yes, I am happy to received promotional communications from Mondaq
No, please do not send me promotional communications from Mondaq
Terms & Conditions

Mondaq.com (the Website) is owned and managed by Mondaq Ltd (Mondaq). Mondaq grants you a non-exclusive, revocable licence to access the Website and associated services, such as the Mondaq News Alerts (Services), subject to and in consideration of your compliance with the following terms and conditions of use (Terms). Your use of the Website and/or Services constitutes your agreement to the Terms. Mondaq may terminate your use of the Website and Services if you are in breach of these Terms or if Mondaq decides to terminate the licence granted hereunder for any reason whatsoever.

Use of www.mondaq.com

To Use Mondaq.com you must be: eighteen (18) years old or over; legally capable of entering into binding contracts; and not in any way prohibited by the applicable law to enter into these Terms in the jurisdiction which you are currently located.

You may use the Website as an unregistered user, however, you are required to register as a user if you wish to read the full text of the Content or to receive the Services.

You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these Terms or with the prior written consent of Mondaq. You may not use electronic or other means to extract details or information from the Content. Nor shall you extract information about users or Contributors in order to offer them any services or products.

In your use of the Website and/or Services you shall: comply with all applicable laws, regulations, directives and legislations which apply to your Use of the Website and/or Services in whatever country you are physically located including without limitation any and all consumer law, export control laws and regulations; provide to us true, correct and accurate information and promptly inform us in the event that any information that you have provided to us changes or becomes inaccurate; notify Mondaq immediately of any circumstances where you have reason to believe that any Intellectual Property Rights or any other rights of any third party may have been infringed; co-operate with reasonable security or other checks or requests for information made by Mondaq from time to time; and at all times be fully liable for the breach of any of these Terms by a third party using your login details to access the Website and/or Services

however, you shall not: do anything likely to impair, interfere with or damage or cause harm or distress to any persons, or the network; do anything that will infringe any Intellectual Property Rights or other rights of Mondaq or any third party; or use the Website, Services and/or Content otherwise than in accordance with these Terms; use any trade marks or service marks of Mondaq or the Contributors, or do anything which may be seen to take unfair advantage of the reputation and goodwill of Mondaq or the Contributors, or the Website, Services and/or Content.

Mondaq reserves the right, in its sole discretion, to take any action that it deems necessary and appropriate in the event it considers that there is a breach or threatened breach of the Terms.

Mondaq’s Rights and Obligations

Unless otherwise expressly set out to the contrary, nothing in these Terms shall serve to transfer from Mondaq to you, any Intellectual Property Rights owned by and/or licensed to Mondaq and all rights, title and interest in and to such Intellectual Property Rights will remain exclusively with Mondaq and/or its licensors.

Mondaq shall use its reasonable endeavours to make the Website and Services available to you at all times, but we cannot guarantee an uninterrupted and fault free service.

Mondaq reserves the right to make changes to the services and/or the Website or part thereof, from time to time, and we may add, remove, modify and/or vary any elements of features and functionalities of the Website or the services.

Mondaq also reserves the right from time to time to monitor your Use of the Website and/or services.

Disclaimer

The Content is general information only. It is not intended to constitute legal advice or seek to be the complete and comprehensive statement of the law, nor is it intended to address your specific requirements or provide advice on which reliance should be placed. Mondaq and/or its Contributors and other suppliers make no representations about the suitability of the information contained in the Content for any purpose. All Content provided "as is" without warranty of any kind. Mondaq and/or its Contributors and other suppliers hereby exclude and disclaim all representations, warranties or guarantees with regard to the Content, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. To the maximum extent permitted by law, Mondaq expressly excludes all representations, warranties, obligations, and liabilities arising out of or in connection with all Content. In no event shall Mondaq and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use of the Content or performance of Mondaq’s Services.

General

Mondaq may alter or amend these Terms by amending them on the Website. By continuing to Use the Services and/or the Website after such amendment, you will be deemed to have accepted any amendment to these Terms.

These Terms shall be governed by and construed in accordance with the laws of England and Wales and you irrevocably submit to the exclusive jurisdiction of the courts of England and Wales to settle any dispute which may arise out of or in connection with these Terms. If you live outside the United Kingdom, English law shall apply only to the extent that English law shall not deprive you of any legal protection accorded in accordance with the law of the place where you are habitually resident ("Local Law"). In the event English law deprives you of any legal protection which is accorded to you under Local Law, then these terms shall be governed by Local Law and any dispute or claim arising out of or in connection with these Terms shall be subject to the non-exclusive jurisdiction of the courts where you are habitually resident.

You may print and keep a copy of these Terms, which form the entire agreement between you and Mondaq and supersede any other communications or advertising in respect of the Service and/or the Website.

No delay in exercising or non-exercise by you and/or Mondaq of any of its rights under or in connection with these Terms shall operate as a waiver or release of each of your or Mondaq’s right. Rather, any such waiver or release must be specifically granted in writing signed by the party granting it.

If any part of these Terms is held unenforceable, that part shall be enforced to the maximum extent permissible so as to give effect to the intent of the parties, and the Terms shall continue in full force and effect.

Mondaq shall not incur any liability to you on account of any loss or damage resulting from any delay or failure to perform all or any part of these Terms if such delay or failure is caused, in whole or in part, by events, occurrences, or causes beyond the control of Mondaq. Such events, occurrences or causes will include, without limitation, acts of God, strikes, lockouts, server and network failure, riots, acts of war, earthquakes, fire and explosions.

By clicking Register you state you have read and agree to our Terms and Conditions