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In Our Compliance Era: Lawfully Navigating Employee Absenteeism and Protected Leaves
Employers know all too well the negative impact that excessive employee absences can have on the workplace. With just a month left of summer, major concerts touring, and back-to-school on the horizon, employers are likely to see many employees using up more of their paid time off as they squeeze in their final vacations and prep for the fall. But what happens when an employee is excessively absent, or an employer suspects an employee is abusing their leave? And how do protected leaves come into play? This blog will discuss best-practices for recognizing and responding to employee absenteeism while lawfully navigating protected leave laws.
What is absenteeism?
Generally speaking, absenteeism is the failure to report to work as scheduled. It includes all forms of absences, as well as employee tardiness. It does not, however, include issues that occur (such as lack of productivity or focus) while an employee is at the workplace.
How can an employer determine if an employee’s absences are excessive?
Several methods can help an agency calculate whether absence is excessive. The simplest way is to calculate the average amount of leave employees take as a whole, and then determine if any individual employee’s absences are well above that average. However, if the employer feels there is an excessive absence issue agency-wide, then the overall average may not reflect an acceptable standard. In that case, looking at the ratio of scheduled days/hours worked versus the actual days/hours worked may be best. It’s important to remember that absenteeism can be excessive even when an employee is still able to draw upon accrued leave accounts, i.e., sick leave, vacation leave, or compensatory time.
How are excessive absences different from abuse of leave?
Unlike excessive absences, abuse of leave deals with using leave only for an illegitimate purpose. This can include misrepresenting what the leave is used for, taking improperly extended breaks or lunches, tardiness, falsified medical notes, or otherwise unauthorized leave. Sometimes a pattern in an employee’s absences can indicate an abuse of leave. For example, if an employee regularly and exclusively calls out sick on Fridays or Mondays.
Are there any activities that cannot be considered when examining an employee’s absenteeism?
Yes. Protected leaves, or leaves that are “protected” by law which employees are entitled to take regardless of Department policy, must be excluded from any definition of excessive/ abuse of leave. All of the protected leave laws, including the Family and Medical Leave Act (FMLA), California Family Leave Act (CFRA), and California Pregnancy Disability Leave (PDL) law expressly prohibit any form of discipline in response to the exercise of a protected leave right.
Absences related to reasonable accommodations under the Americans with Disabilities Act (ADA) and leave related to workers’ compensation or an industrial injury are two very common protected leaves that cannot be considered when analyzing an employee’s potentially excessive absence. Some other common protected leaves include those for:
- Appearance at a child’s school (Labor Code 230.8 allows an employee to use up to 40 hours of personal leave, vacation, or comp time, but no more than 8 hours a month (unless there is an emergency), to participate in their child’s education and/or school activities. Labor Code section 230.7 allows a parent-employee to take time off to appear at their child’s school due to the child’s suspension.)
- Military deployment
- Attending jury duty
Employers should carefully evaluate whether an employee’s absence falls under a protected leave before instituting discipline related to excessive or abuse of leave.
What are the employer’s options if an employee is excessively absent or abusing their leave?
First, it’s important for employers to keep a written file of key information regarding employees’ absences or tardiness, including the date, time, and location of the incident, the employee’s reason for the absence or tardiness, and the employee’s efforts to obtain authorization. This information will be crucial when pursuing any subsequent action.
If an employee is excessively absent, and any applicable Memorandum of Understanding (MOU) provision does not otherwise prohibit it, an employer can and should respond. Not responding can establish a past practice or lead employees to think such absences are acceptable, when they are not.
If there is reason to believe the employee is suffering from a medical condition that prevents him/her from performing the essential functions of the position, a fitness for duty examination may be appropriate.
When apparent abuse of leave occurs, the best practice is for the employer to conduct an investigation. In addition to misusing the leave, the employee might be violating Department policies related to dishonesty. By investigating and uncovering all relevant facts, an employer increases the likelihood that any disciplinary action imposed will be sustained if an appeal is brought in the future. That said, investigations into medical reasons are limited by laws such as the Confidentiality of Medical Information Act. So employers should consult with legal counsel to ensure they are asking appropriate questions.
If it is ultimately determined that an employee’s absences violate agency attendance policy, then progressive discipline is another option an employer can pursue.
Other best practices:
- Communicate acceptable standards with employees in advance.
- Have a clearly defined attendance/leave policy.
- Be consistent! Apply the standards equally across all employees when evaluating excessive or abuse of leave. If an exception is made to the leave policy for one, it should be made for all employees.
In the end, the best offense is a good defense. By clearly setting expectations with employees, utilizing a well-defined written policy, closely tracking attendance, and intervening early when potential issues arise, employers can help prevent absenteeism and avoid bad blood with employees in the future.