Controlling absence: 5 keys to doing it legally — Business Management Daily: Free Reports on Human Resources, Employment Law, Office Management, Office Communication, Office Technology and Small Business Tax Business Management Daily
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Regular attendance is obviously a key job function for most of your employees. But despite your freedom to set and enforce attendance rules, you also face key legal hurdles to your attendance policy, including complying with the FMLA and ADA.

Bottom line: If an employee is absent from work because of an FMLA or ADA-approved reason, he can't be disciplined for the absence under your regular attendance policy.

Also, state laws may affect your ability to discipline or terminate employees for excessive absences.
There's a way to keep your employees happy while being fair to everyone – and complying with federal and state laws. The Leave Mini-Library will have you successfully managing leave policies and maintaining a productive workplace. And you'll do it all while staying within the law. Learn how here...
How to comply

Manage absenteeism by establishing a reasonable and specific attendance policy that incorporates your organization’s needs and the functional requirements of various work areas and employee functions. A sound attendance policy should cover all of the following:

  • Tardiness
  • Sickness
  • Personal business
  • Family and medical leave
  • Disability leave

Set objective, measurable criteria for when absenteeism triggers disciplinary action. You may require documentation such as a doctor’s note to explain absences that exceed a certain length of time or under other circumstances you specify.

The two most common types of attendance policies are no-fault policies and paid-time-off policies.

No-fault attendance policies regulate absenteeism by recording each absence as an “occurrence.” Progressive discipline kicks in when the number of occurrences exceeds a certain threshold. For example, six occurrences may result in a written warning, eight occurrences may trigger a one-day suspension, and 12 would end in termination.

Paid-time-off (PTO) policies, also known as “paid leave banks,” group all vacation days, holidays, sick days and personal days into one combined bank of days an employee is entitled to be absent from work each year. Employees who exceed the maximum number of absences may be subject to discipline. Employees who use less than the maximum number of absences may convert the remaining days into cash or carry them over to the next year’s balance.

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How to choose what works for you

There are five keys to implementing a successful attendance policy.

1. Examine your typical job functions to decide which attendance system best fits your organization. For positions that deal with the public, for example, coverage during regular business hours is essential. Other positions may permit greater flexibility. In some job functions, employees may be available to cover for absent co-workers; in others, only one or two people may be equipped to perform the work. Building in scheduling flexibility whenever possible helps reduce unexpected absences.

2. Next, make sure you and your supervisors keep accurate records, particularly for hourly employees. Casual or informal timekeeping practices for hourly employees are lawsuits waiting to happen.

In one recent case, two clerical workers sued for several years of overtime back wages. The workers said they had worked for years in a casual “comp time” setup, tracking their own hours and taking extra leave to offset the overtime. Because there were no official time records, the company was at the workers’ mercy. It pays to be flexible with schedules, but not with documentation.

3. Communicate the attendance policy’s terms to all employees, and include them in employee handbooks.

4. Apply your attendance policies consistently among employees. Employers that fail to do so expose themselves to discrimination claims.

5. Avoid taking any adverse employment actions after an employee returns from FMLA, ADA or other legitimate leave. Even if the action is unrelated to the leave, an employee may be able to make a case for retaliation or discrimination. If you must take action following a leave, make sure your files contain a well-documented business reason for the action.

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