august2022 - 18

THE LABOR LAW ADVISOR
The Employee Attendance Dilemma
AS ONE MIGHT expect, the pandemic made 2020 and 2021 unique years for workers
calling in sick, but employee attendance has long proven a nettlesome issue for employers.
The average number of sick days per employee annually is 5.2, and one in four
workers admit to being late for work at least once per month. Survey data indicates
that an average of 1.5 million workers per month missed work due to personal illness.
Absent and tardy employees
result in over $225 billion in lost
productivity each year. Absenteeism
has significant and costly effects,
such as diminished product quality
or business services and weakened
employee morale among
those
employees forced to pick up the slack
for missing workers. A SHRM study
found that on average, supervisors
spend between four and five hours
per week dealing with absences. That
equals more than five weeks per year
of a supervisor's time.
Employers have often
historically responded to
absenteeism through progressive
discipline, but
this approach is proving
less effective in recent
times, with an estimated
nine million job openings
available and employees jumping
to new jobs at record pace. In
these circumstances, the threat of
termination loses much of its impact,
and it has forced employers to be
more tolerant of absence that would
otherwise result in disciplinary
action. Employees know that another
job with competitive pay and benefits
is likely available just down the road.
Employers have also historically
used incentives to address attendance
problems. Some have used
hourly pay incentives, while others
have used lump-sum bonuses for
perfect attendance over a specified
period. Other incentives for perfect
attendance have included such
things as flat screen televisions,
additional vacation days, additional
paid days off and gift cards.
Anecdotal reports from employers
suggest such bonuses generate
short-term success but this generally
dissipates over time. One drawback
of such bonuses is the administrative
headache of calculating the regular
rate for overtime purposes under the
Fair Labor Standards Act (FLSA) to
account for the bonus payment. This
can generate substantial liability over
federal courts consistently conclude
the employer's reasonable judgment
regarding what job functions are
truly " essential, " should be accepted.
Nonetheless, there is no perfect
solution to attendance issues, and
thus, employers must be proactive
in setting their expectations clearly
during the onboarding process. In
addition to being an integral part of
the employee handbook, employee
attendance policies should be
emphasized during employee meetings
or town halls. Employers must
also ensure their supervisors
receive sufficient training on
managing absenteeism.
Under most attendance
policies employees
generally must call their
direct supervisor to
report an absence.
That personal call presents
the opportunity for the supervisor
time if not handled correctly. Despite
their limitations, many employers
continue to use incentives to incentivize
better attendance.
In recent years employers have
begun to more frequently include
regular attendance as an " essential
function " in some job descriptions as
a means of rendering an employee
" not qualified to perform the job " as
the basis for termination where an
employee is regularly absent. This
strategy has been generally successful
in circumventing Americans
with Disabilities Act (ADA) claims, as
18 AUGUST 2022 ■ www.CPAPracticeAdvisor.com
to tell the employee that he or she
will be missed and briefly describe
the impact of their absence on the
workplace. When the employee
returns,
the
supervisor
should
make a point of welcoming them
back, encourage good attendance
in the future, and again discuss
the impact on fellow workers. The
conversation should not take on
an accusatory tone because most
absences are for legitimate reasons. If
the absence is for an extended period,
the supervisor should maintain communication
with the employee during
the absence.
RICHARD D. ALANIZ
Senior Partner
Alaniz Schraeder Linker Faris Mayes, L.L.P.
ralaniz@alaniz-schraeder.com
The focus of the contact should
always be the employee's well-being.
Any implication that the supervisor
is pressuring the employee to return
could lead to claims of interference
with legally established leave under
the ADA, Family and Medical Leave
Act (FMLA), and/or a similar state law.
A final issue to consider in
addressing employee absences is the
possibility that the poor attendance
is symptomatic of a more serious
problem the employee may be experiencing.
Frequent absences could
indicate drug or alcohol dependency
issues. The absence could be caused
by undiagnosed medical issues or
family issues. It might even be the
result of a conflict with a coworker
or supervisor.
When discussing an absence with
a returning employee, the supervisor
should tactfully try to determine if
there is some underlying problem
causing the absences. This information
would be relevant to any contemplated
disciplinary action, as well as
to a decision to refer the employee
to a medical provider or assistance
program. The employee's well-being
should always remain the priority.
By setting clear expectations on
employee attendance from the outset,
periodically re-emphasizing the
effects of absences on the operation
and coworkers, and making attendance
management the supervisor's
responsibility, you may be able to
limit unnecessary absences in your
workplace. ■
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