Hidden Issues in Managing Absenteeism
By Randall P. Sutton
SAALFELD GRIGGS PC
Faced with a person who is chronically late or absent, it might seem that the simple solution is to terminate the employee and hire someone who “wants to work.” Unfortunately, in employment law, nothing is simple. Although a number of laws impact an employer’s ability to terminate employees for 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. To determine whether your company is covered, count both the workers on your payroll and the workers you lease from a staffing agency. 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. The law can give even more time off for parental leave, certain pregnancy conditions, and to care for sick kids. An employer can violate the law by refusing to grant leave to an eligible employee or by failing to maintain benefits or 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 medications.
Many employers carefully track absences and tardiness, but have poor records about why the employee missed work or was late. 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.
While many employers believe that only a permanent impairment, such as blindness or being confined to a wheelchair, can qualify as a “disability,” the law is actually applied far more broadly. If impairment makes life a lot 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 may affect the employee’s home life more than their work. Examples include cancer recovery, back injuries, learning impairments and chronic depression.
If a person’s disability affects their job, you may be required to provide a “reasonable accommodation.” Allowing an employee to take time off or come in late is one of the many possible accommodations that an employee with a disability may be entitled to. You also may need to give the employee more frequent breaks or alter the employee’s schedule. It does not matter that this special treatment of one employee may be bad for morale.
When handling disability-related issues, courts require employers to engage in the “interactive process.” To satisfy this requirement, the employer should talk with the employee to determine exactly what he or she is asking for as an accommodation. If the accommodation is something that the employer cannot easily provide, further dialog and investigation is needed to determine whether the employee really 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.
Absence Request Forms: You should know the reason for every absence and whether any absences are protected by law. Your form can provide definitions for family leave that allow the employee to self-identify the reason for the absence.
Medical Verification: Requiring a doctor’s note or other verification may deter employees who do not have legitimate absences. Documentation can also confirm whether an absence really is really protected. Be careful what you ask for, as the laws regulating confidentiality are strict.
Clear & Consistent Attendance Standards: 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: It is critical to have HR review a termination decision before it is finalized. Once an employee is terminated, your fate is often sealed, as errors in the decision-making process are difficult to correct.
Because the employment laws are complex and the facts and risks vary widely on a case-by-case basis, consult with your legal advisor whenever you are in doubt. If you would like more information on employment matters, please call our office.