Absenteeism: Troublesome Traps and Tips to Avoid Tribulation
By David Briggs
We regularly hear from employers who want to terminate employees because their employee is frequently late or absent. Employers often become frustrated with an employee’s absences because the absences cause a hardship, not only on the company, but also to the employee’s coworkers. Employers express concern that the absent employee seems less committed to the organization. Employers believe that this troublesome employee isn’t the “right fit” and want to replace that employee with someone who “wants to work”.
Replacing the employee would seem to be a simple and common sense solution. Unfortunately, in employment law, nothing is simple, and common sense rarely comes into play. Although a number of laws impact an employer’s ability to terminate an employee with attendance problems, there are two laws that give employers the most to worry about.
Family Leave Laws. The Oregon Family Leave Act (“OFLA”) applies to most companies that regularly employ at least 25 workers. If you regularly employ 50 or more workers, then the federal Family & Medical Leave Act (“FMLA”) may also apply.
The family leave laws require that you give an employee 12 weeks of unpaid leave for a “serious health condition” of the employee or the employee’s immediate family member. Under Oregon law, immediate family includes not only parents, spouse and children, but also parents-in-law, grandparents, grandchildren, step-parents, step-children, and domestic partners. The law can give even more time off for parental leave and certain pregnancy conditions. The law even goes so far as to make leave protected when your employee stays home with a child too sick to go to school or daycare.
An employer can violate the law by refusing to give an eligible employee time off, by penalizing the employee for taking family leave, failing to maintain benefits, or refusing to return the employee to work at the end of the leave.
A “serious health condition” need not be life threatening. For example, a person who is admitted as an inpatient in a hospital will be deemed to have a serious health condition. A pregnant woman who goes to the doctor for prenatal visits likewise has a serious health condition. Surprisingly, a “serious health condition” can even include the flu so long as the employee is incapacitated for more than three days, visits the doctor and is treated with prescription medication.
Employees don’t need to specifically ask for “family leave.” Employers are on the hook once the employee has provided enough information to recognize that the absence could be protected. If an absence is protected, you can get into trouble if you make a termination decision based on that absence.
Although most employers carefully track absences and tardiness, the reason why the employee missed work is often not documented. If you want to terminate an employee with a bad attendance record, it is critical that you are able to prove that none of the absences you are counting are protected by the family leave laws.
Disability Discrimination Laws. When managing absenteeism, don’t forget about the Americans with Disabilities Act (“ADA”) and its Oregon counterpart. Nearly every Oregon business is covered by one or both of these laws.
Although a permanent impairment such as blindness or being confined to a wheelchair will qualify as a “disability,” the law is actually applied far more broadly. If an impairment makes life much more difficult for the employee, and the impairment lasts long enough, it will probably qualify as a disability. Disabilities can be mental or physical and can qualify even if the effects are felt at home and not so much at work. Examples of disabilities can include back injuries, migraines, learning impairments and chronic depression.
If a disability makes it more difficult for an employee to do his or her job, the employer may be required to provide a “reasonable accommodation.” With regard to absenteeism, allowing time off, more frequent breaks, reduced hours or a different work schedule are all possible reasonable accommodations. It does not matter whether giving one employee and not others this “special treatment” is bad for morale.
When handling disability-related issues, courts require employers to engage in an “interactive process.” To satisfy this requirement, talk with the employee to determine exactly what he or she needs as an accommodation. If the request is something the employer can easily provide, then make the accommodation and document that you did so. If the accommodation is expensive or difficult to provide, further dialog and investigation is needed to determine whether the employee has a “disability” and what accommodation(s) might reasonably allow the employee to perform his or her job.
Best Practices for Avoiding Disability & Family Leave Problems. If absenteeism is a serious problem in your company, there are several steps that can help you legally bring the problem under control:
Call-In Procedures: The procedure for calling-in absences should be consistent. The person taking the call should be trained about how to lawfully determine the reason why the employee is not coming into work. The reasons provided must be documented.
Absence Request Forms: You should know the reason for every absence and whether any absences are protected by law. Get a leave form for every absence. The form should provide family leave definitions and allow the employee to self-identify the nature of the absence.
Consider Requiring Medical Verification for Absences: Requiring a doctor’s note or other verification may deter employees who do not have legitimate absences. Documentation can also help confirm whether an absence really is protected. Your documentation requirements must be uniformly applied. Be careful what you ask for, as the laws regulating confidentiality are strict.
Attendance Standards Clearly Stated & Consistently Enforced: Be specific about what is “excessive” tardiness or absenteeism. In doing so, make sure you only count those absences that are not otherwise protected. If the policy is selectively applied and ignored for high performing employees, you are setting yourself up for a discrimination claim.
Require HR Review of Every Termination Decision: It is always critical to have HR review a termination decision before it is finalized. Problematic family leave and disability issues should also have attorney review. Once an employee is terminated, your fate is often sealed as errors in the decision-making process are very difficult to correct.
If you would like assistance in analyzing absenteeism issues in your business, please contact an attorney in our Employment Law Group at 503-399-1070 or email David at dbriggs@sglaw.com.