Key Steps to Successfully Manage Absenteeism

When dealing with employee absenteeism, employers need to carefully navigate the “Bermuda Triangle” of leave laws. This confusing and potentially costly place is created by the intersection of the Oregon and federal family leave laws, the federal and state disability discrimination laws, and the Oregon workers’ compensation laws. An employee with frequent or unreliable attendance problems may have protection under one or more of these laws.

THE FAMILY LEAVE & DISABILITY LAWS

The family leave laws protect employees who need time away from work for a “serious health condition” or for other qualifying reasons. Any Oregon employer with at least 25 employees on the payroll for 20 weeks out of the year must comply with the Oregon Family Leave Act (“OFLA”). The family leave laws allow certain employees to take scheduled and unscheduled absences, intermittently or for a continuous period of time. Under the family leave laws, an employer is often required to tolerate an employee’s unpredictable or unreliable attendance.

The Americans with Disabilities Act (“ADA”), and the Oregon version of that law, protect disabled employees who need a reasonable accommodation to perform their jobs. Oregon employers with six or more employees must comply. The definition of “disability” is much broader than most employers realize. The disability laws impact absenteeism policies, because an employer is sometimes required to provide time off or a change in work schedule as a reasonable accommodation.

THE BERMUDA TRIANGLE

Each of these laws imposes its own requirements for eligibility, notice and verification. The legal protections imposed by these laws frequently overlap and are sometimes inconsistent. Although each of these laws is complex on their own, understanding and managing the interplay of the laws for a particular employee’s situation can be both difficult and frustrating.

Over the years, we have assisted many clients in managing these “Bermuda Triangle” issues. Here are the some of the most common areas where clients struggle, and some ideas about how to more effectively manage employee absenteeism:

THE PROBLEM: FAILING TO RECOGNIZE THAT THE EMPLOYEE MAY HAVE PROTECTED LEAVE RIGHTS

Suppose an employee calls in and says he “doesn’t feel so well,” has gone to see the doctor, and won’t be able to come in at all this week. Given these facts, the employee’s absence may qualify for family leave protection. Managers and supervisors who don’t understand their obligations under the various leave laws may make decisions based upon impermissible criteria, or not spot “red flags” that would prompt them to seek input from human resources. For example, I frequently see supervisors giving performance reviews that are critical of an employee’s attendance, even though many of the absences are legally protected. If the employee is eventually terminated, even for a reason that has nothing to do with attendance, a lawsuit by the employee will be far more difficult to defend.

THE SOLUTION:

Train your supervisors and managers to understand the words that may trigger legal obligations. If the reason why an employee is requesting time off appears to qualify as family leave, it is the employer’s duty to notify the employee about his or her family leave rights and take care of the required documentation. Likewise, under the disability laws, if the employer is aware that the employee has an impairment that might qualify as a “disability,” and the employee asks for help of any kind, the employer may be obligated to engage in the “interactive process” to determine the nature and scope of the disability and whether it can be reasonably accommodated.

To the extent absenteeism is a problem, performance evaluations should focus only on those absences that are not family leave or ADA protected. The company’s HR person should review evaluations before they are finalized to make sure that the employee is not being penalized for legally protected conduct. Decisions to terminate for attendance must be reviewed by HR in all cases. Making any disciplinary or termination decision without thinking through all of these issues can be very risky.

THE PROBLEM: FEAR OF DEALING WITH EXCESSIVE ABSENTEEISM

The opposite problem arises when an employer knows enough about the leave laws to be concerned, but takes no action at all out of fear of doing the wrong thing. Many employers give the employee far more time off than the employee is legally entitled to, raising frustration levels and making the next absenteeism issue more complicated to manage.

THE SOLUTION:

Trying to evaluate leave issues on an occasional or ad hoc basis can be nerve-wracking. The first step is to thoroughly train the HR person who is administering your attendance policy. It is also very important to develop clear policies that will allow your HR person to step through these issues in a systematic way. The policies need to comply with the law and treat employees consistently, while still promoting a productive workplace. The only way to effectively handle the variety of leave issues that can arise is to create written policies that employees, supervisors and HR can rely on. The policies need to clearly explain the requirements regarding prior notice, medical verification, documentation, and employer expectations. To avoid liability, HR also needs to be able to consult with legal counsel on specific cases to make sure that the issues are being handled appropriately.

KEY STEPS TO TAKE

Designate a person in your organization to be responsible for administering the company’s leave and absenteeism policies. The laws are far too complex to expect every supervisor and manager to become an expert.
Give the designated person as much training as they need to feel comfortable dealing with these Bermuda Triangle issues.
Create written attendance and leave policies, procedures and forms that work for your company and make sure they are reviewed for compliance with the law.
Uniformly apply your policies and procedures. If you make an exception, be ready to defend your reasons why.
Make sure your supervisors and managers are trained to spot the “red flag” family leave and disability issues and take appropriate action.
Make sure your designated person is involved prior to making any decision to discipline or terminate an employee for attendance problems.
When in doubt, contact our office for help in evaluating sticky situations or just to get a second opinion.

Good training and effective written policies are critical if an employer wishes to avoid costly litigation. Handling absenteeism issues in a consistent and lawful way will make it far easier to address an employee’s other performance issues. Should the employee eventually be disciplined or discharged, these efforts will also make any lawsuit far easier to defend.

If you have any questions regarding the topics addressed in this article, please contact Randy Sutton, or another member of the firm’s Employment Law Group.