An employer should have an attendance and tardiness policy in the company employee handbook. Attendance and punctuality policies should inform employees they need to be on time, define excused and unexcused absences, and provide guidelines on the amount of notice an employee must give before an absence. The policy should state the employee will be disciplined if they miss work for an unexcused absence and if they are a no call/no show for a certain number of days they will have been considered to have voluntarily resigned. As an alternative, a policy can state generally that attendance and punctuality are important and tardiness and absenteeism may lead to discipline, up to and including termination. A general policy allows the employer discretion to respond to individual situations. Whether the employer has a detailed policy or a general policy the policy needs to be consistently applied to prevent any claims of discriminatory treatment of employees.
Employers must be careful that the company’s attendance and punctuality policy does not violate Federal, State, or local leave laws that permit employees to take time off from work for various purposes. The attendance policy should include in the list of excused absences any absence that applicable Federal, State, or local leave laws require or permit. In addition, the policy should state an employee may be disciplined for “excessive, unexcused absences,” to make clear to managers that disciplining for “excessive absences,” may be a problem because certain absences may be protected by law.
Employees Should Not Be Disciplined for Being Sick, Injured or Having a Disability:
An employer should not discipline or terminate an employee for being sick or for medical reasons. An employer has the right to discipline or terminate at-will employees for violating the attendance policy, or if an employee is not able to perform the job. However, the Family Medical Leave Act, the Americans with Disabilities Act, worker’s compensation laws and paid sick leave laws and the Minnesota Sick and Safe Time Leave law (ESST) that went into effect on January 1, 2024, protect employees from being disciplined, terminated, or having adverse employment actions taken against them for asserting their rights under these laws.
Attendance Point System:
An attendance policy that charges employees with an “occurrence” regardless of the reason for the absence and regardless of whether the employee is paid for the time off would penalize Employees for taking ESST leave, ADA or FMLA-qualifying leave or other statutorily protected time off. The Equal Employment Opportunity Commission (EEOC) will investigate employers with attendance policies which have inflexible leave requirements for possible violation of reasonable accommodation provisions of the Americans with Disabilities Act (ADA). Incentive-based attendance policies, which reward employees for good attendance and not using time off can also be a violation of the ESST leave law and Federal leave laws because these policies may illegally discriminate against an employee who is sick, injured or disabled by giving more favorable treatment to employees who are not sick, injured or disabled.
Recommendation for When to Discipline Employees for Attendance Violations:
In situations where employees call in and don’t have an excused absence, or if the employee has too many unexcused absences, the employer may discipline the employee for violation of the attendance policy. Employees should not be disciplined or terminated for being sick, injured or for having a medical condition. In addition, Federal and State leave laws all have retaliation policies which prevent an employer from taking any action against an employee for asserting their rights under these laws.
If the employer is going to discipline an employee who has called in sick, the employee should not be disciplined for being sick, injured or disabled, but the discipline should be for one of three reasons.
- The Employee’s absence is unexcused.
- The Employee did not follow proper procedures.
- The Employee does not have any leave time and is not eligible for leave under any State or Federal leave law.
The employer needs to be careful not to hastily terminate an employee who doesn’t have PTO or FMLA leave time available to them. An employee who does not have any PTO leave or has exhausted their FMLA may be entitled to unpaid medical leave as a reasonable accommodation if they are a qualified individual with a disability under the Americans with Disabilities Act (ADA). Some state and local ordinances may similarly impose obligations on employers to provide unpaid leave as a reasonable accommodation. If the employee is disciplined, terminated or adverse job consequences result from the employee asserting their rights under these laws, the employer could be sued for violating State or Federal law or for retaliation for the employee exercising their rights under these laws.
Each situation should be investigated to determine if the employee is protected by State or Federal leave laws before disciplining or terminating an employee and to ensure the employer has the documentation to support the violation of the attendance and tardiness policy. If your small or mid-size business has human resource or employment law questions, please contact Holden Law Firm at (952) 943-3960 for a consultation.
