As promised in the first edition of the Williams’ HR Insights e-zine, I am providing additional information into the implementation of a no-fault attendance policy. If you are contemplating a no-fault policy, give careful consideration to the following points:
-- A fault based attendance program rests heavily on the requirement that employees provide a doctor’s statement for absences related to an illness or accident. A bona fide doctor’s statement justifies the employee’s absence, and bars the employer from taking action against the employee. A no-fault policy does not require a doctor’s slip for any absence. I like this fact because doctors will always provide a statement, even if it says no more than, “patient X visited me on X day and reported that he had a sore throat.” Notice that this statement does not indicate whether or not the employee could have worked. In fact, as most of you know, it often seems that a doctor’s statement is one element of an elaborate game that is being played out between the employer and the employee. The no-fault policy is an attempt to get away from this game, and simply recognize that the employee was hired because there is work to do. When an employee is not at work, the work is not being done. While there is some latitude a reasonable employer must give for an illness and/or other personal problems, the employee’s good attendance is an essential tenet of the job.
-- Please note that the exception to the first bullet involves an absence that is covered under FMLA. Any absence covered by FMLA cannot be assigned an attendance point under the no-fault attendance program. Thus, a no-fault attendance policy would need to be constructed that clearly differentiates those absences that would produce an attendance point from those that would not. A no-fault attendance policy, as explained in the July e-zine, is usually based on a point system where the accumulation of a certain number of attendance points will lead to discharge. Examples of what might trigger an attendance point include any absence (multiple consecutive days of absences are typically viewed as one absence or one point), a tardiness of 45 or more minutes, a no call/no show, funeral leave and time taken off during the day for personal reasons. Please note that a one-day absence that is a no call/no show would receive two attendance points.
-- One of the important elements of a no-fault attendance policy is that very legitimate absences (funeral leave) are given an attendance point – the employee is absent. Thus, while your policies may provide for funeral leave (paid or unpaid) the absence would still create an attendance point. Under a well-crafted no-fault policy, however, employees with good attendance will quickly remove any attendance points that have been placed on his or her record.
While we are on the subject of employee attendance problems, I ran across a recent court decision (State of Washington) where the employer was held liable for the taunting of an employee by fellow employees over absences related to an on-the-job injury. The employees were upset because they felt the injury was faked and resented the fact that the employer had provided light duty alternative work. As a result, a group of employees made life miserable for the injured employee. This cost the employer a great deal of money, even though the employees were told to “knock it off” by their supervisor on a number of occasions.
There are two legal concepts that are of substantial importance as applied to state and federal law. The first is the word “pretext.” Whenever the court evaluates an employee’s claim under statutes, such as ADEA, ADA and OSHA, the critical question asked by the court is whether the reasons given by the employer for discipline or discharge are simply a pretext provided to justify an illegal action under the statute. Thus, the evidence provided by the employer, in order to satisfy the court’s concern over pretext, must by solid and well-documented.
The other term of significance is “essential functions.” The problem with the term “essential functions” is its slippery nature. Employers are not required to change an essential function of a position to accommodate an employee. An essential function is a job duty that is fundamental, basic, necessary and indispensable to filling a particular position; as opposed to marginal duty divorced from the essence or substance of the job. Also note that an essential function includes both the expected conduct for the position and the actual service that is required from the employee.
A recent Nevada case, upheld by the Appeals Court, provides insight into the importance of the “essential functions” concept. The Appeals Court affirmed that an employee is not entitled to reasonable accommodation, under the ADA, when he or she is unable to perform the essential functions of the job. The protections of the ADA apply only when an employee with a bona fide disability is able to perform the essential functions of the positions. The employer must be careful with this concept, however, because if the disability is the result of a workplace injury, the employee may be entitled to reasonable accommodations under state disability statutes.
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