The Law: Ways to improve employee punctuality, attendance problems

As a management attorney, I have dealt with just about every employee issue. Over the years, however, there is one issue that seems to upset managers more than all of these other issues combined: attendance and punctuality.

One human resource professional stated that in the workplace, there are 10 things that take zero talent but that will get an employee 100 percent respect: being on time, work ethic, effort, body language, energy, attitude, passion, being coachable, doing extra and being prepared.

Notice which one is first?

Failing to show up on time or at all — also known as regular and punctual attendance on most job descriptions — is often the leading cause of employee discipline and termination.

Most companies follow progressive discipline. The offending employees is coached, given a verbal warning and then several written warnings before suspension or termination.

Managers often wonder why people who seemed perfectly reasonable and otherwise considerate somehow never learn to be on time.

Punctuality is primarily both an integrity and respect issue. The way employees build up trust is by meeting their commitments, and that starts with being punctual. Your co-workers are busy, too, and being punctual shows that the employee values their time.

Absenteeism

Employee absenteeism is another problem.

A company succeeds only if employees perform their duties, but that is impossible if certain employees regularly refuse to show up to work.

To complicate matters, punishing employees for missing work may not deal with underlying causes and might even worsen the problem. For example, if a worker with the flu doesn’t stay home, other workers can get sick.

Absenteeism doesn’t merely occur on Mondays and Fridays either.

For example, a 2017 Iowa Court of Appeals case, Megan Sedlacek v. the University of Iowa, demonstrated how ridiculous absenteeism can occur.

In that case, the court noted that over the past six years the employee had missed all or part of 356 workdays, or around one workweek per month!

The court wisely held that an employer does not need to provide “open- ended intermittent absences for an indefinite period of time” to an employee. Rather, granting such leaves is reasonable only if it allows the employee to perform the essential functions of the job in the present or in the “near future.”

Employer options

What are an employer’s options?

As noted above, traditional sick day policies may make it difficult for employees to do the right thing. When an employer takes disciplinary action for excessive absenteeism, your sick workers are scared to miss work and show up and infect your healthy workforce.

The solution involves verifying an employee illness after a specified period of time, which generally requires some form of doctor’s certification that the employee has sought medical treatment.

In a recent case from Indiana, for example, the 7th Circuit Court of Appeals affirmed summary judgment to an employer on the grounds that the employee was terminated for insubordination in refusing what the court perceived to be a reasonable and lawful request for a doctor’s note.

In that case, the foreman asked the employee to bring a doctor’s note when the employee returned to work following a two-day illness for hypertension. The employee became agitated and belligerent toward the foreman for that request and was fired for insubordination.

The employee sued for an alleged disability and lost.

The court found that a doctor’s note would have facilitated the required interactive process between the employee and the employer to determine if a reasonable accommodation existed. The court found that the employee’s defiance “abruptly halted this process.”

Paid time off

Paid time off, or PTO, should be considered as an alternative to traditional sick day policies. However, PTO may not be effective in dealing with specific individuals with excessively high rates of absenteeism.

Other employers consider sick leave incentive plans — aka attendance bonuses — that might award cash bonuses, gift cards or extra time off. Detractors, however, argue that such an incentive plan merely gives employees something “extra” for merely coming to work.

Remote work

Finally, employers have increasingly implemented remote work options to employee allowing work from home.

Instead of taking a “mental health day,” many employees use remote work as an alternative to working at the office. If productive work is being performed at home, why does an employer care where it is being done? Is “face time” in the office really a requirement for all employees?

Of course, make sure you audit productivity and hours of remote employees in order to evaluate its effectiveness. If an employer is suspicious about remote work, an employer, for example, could require employees to keep a log of all work performed from home.

In addition, a number of legal issues are associated with working from home arrangements, such as overtime, so monitor and have written policies that address these issues.

Train managers

Accordingly, management retains a great deal of flexibility in deciding which approach to take to punctual and regular attendance.

However, employers must train their managers on the various laws that could impact attendance and punctuality: family medical leave laws (FMLA), wage and hour laws, military leave laws, disability discrimination laws and workers' compensation laws.

These laws may dramatically affect an employee’s discretion with respect to the policies and practices regarding covered absences. The FMLA, for example, sets forth specific processes to be followed when requesting medical certification

Wilford H. Stone is a lawyer with Lynch Dallas in Cedar Rapids. Comments: (319) 365-9101; wstone@lynchdallas.com