Timothy Williams' H.R. Insights: attendance

Last week a local newspaper ran a front page story about sick leave abuses in the Sheriff’s Department. Overall, sick leave usage was substantially increased over just a few years ago. It seems that the new Sheriff has not been nearly as diligent as the old Sheriff in policing sick leave usage among deputies in the corrections department. When interviewed the Sheriff indicated that he believed his hands were tied by the labor contract and the fact that the deputies were only using sick leave that had been legitimately accrued.

Maybe, but let’s think about that.

As noted in the last e-zine, the main topic for this month is the effectiveness of attendance control programs. As the above article helps illustrate, this is a timely topic and one I frequently receive questions about. Over the years I have reviewed a number of surveys conducted with HR managers on important issues. Tardiness and absenteeism has been, on every single survey, the number one concern. In a prior e-zine I wrote about no fault attendance programs that are based on a rolling twelve month period of time. I am not intending to duplicate that article but rather my intention is to share information, insights and observations related to the attendance issue that have been accumulating over the past 35 years of working with HR problems.

In public sector employment, my experience is that the most common accrual rate is roughly one day of sick leave for each month of work. At one time it was not uncommon to find many of the older employees that had several hundred days of accumulated sick leave. Sick leave was typically viewed as an insurance policy against potential illness. Thus, if you were not ill then sick leave days simply continue to accumulate. If there was a limit on total accrual, potential days of sick leave were simply sacrificed when the limit had been reached. This was viewed no differently than having fire or flood insurance on your house. While one paid for the insurance, the hope is that collection never occurs and the money paid for the insurance simply lost.

Current research indicates that the attitude about sick leave has substantially changed from insurance used to offset an undesired outcome to one of entitlement. Thus many employers, like the above reference Sheriff’s Department, find that a substantial portion of their employees, even those who have been there for many years, have little if any accumulated sick leave. In fact, the last major national survey (2003) contracted by the department of labor added a new statistic covering employees who come to work sick so that they can save their sick leave days for more enjoyable activities. This survey indicated that 7% of sick leave usage was impacted by this new category.

On the other hand, other employment data indicates that there is an offset against the high use of sick leave. This data indicates that today’s employee work on average 200 more hours per year in the U.S. then 30 years ago. Higher levels of sick leave usage may be substantially impacted by the longer hours of work.

Regardless of the causes of sick leave abuse, however, most employers are finding it necessary to implement some type of attendants control program. Hopefully you’ll find the following information helpful in assessing your current program and looking at how it can be modified to become more effective. I believe you should give careful consideration to a number of different factors.

First, how you communicate the importance of regular attendance is going to be very important. Obviously a single message is not going to be sufficient. I recently ran across an employee handbook that dealt with the issue of attendance differently than what I have seen in the past. Typically there is a section in the employee handbook spelling out actions that will bring about discipline. Poor attendance is typically identified in this section of the handbook with varying degrees of emphasis.

Oftentimes there is a separate section of the handbook dealing with the various ways in which employment can end. Quitting, retiring, being laid off and being discharged for cause are usually mentioned. The handbook I am referencing, took pains to identify poor attendance as a basis for separation from service and gave it top billing in this section. Employees were informed that attendance issues would result in discipline and multiple days of absence without notification would be considered job abandonment resulting in separation from service.

What I particularly liked about this approach is attendance was given a specific, separate treatment. This distinctive treatment allowed the employer to put a special emphasis on attendance during employee orientation and to highlight it in the event the disciplinary action became necessary for attendance problems. The bottom line is that you need to find ways to effectively communicate the critical importance of regular attendance.

Second, while modifying existing sick leave programs, particularly if you have a labor contract, will usually raise substantial employee resistance, the “new” attitude toward sick leave usage encourages at least some adaptation. One of the most common is to shift all of the various paid leaves of absences into a single category called paid time off (PTO). If the PTO program is properly administered, it can result in better attendance, less overtime and an easier job for the supervisor. While a detailed discussion of PTO is probably a good topic for a future e-zine, I want to emphasize two elements of a PTO program. The first is that the sum total of vacation time plus sick leave plus other personal leaves should be less than the total days of PTO, but that the employee is fully entitled to use all days of PTO.

The second is that PTO is but one version of an attempt to stop rewarding employees for doing what we don’t want them to do. Sick leave typically can only be used if you’re sick. But, we don’t want people to be sick and therefore to be absent. Employees can use PTO without being sick, just like vacation. Having to use a vacation day (PTO) to cover an illness is not the same as using a day that can only be used to cover an illness.

Most importantly, notice that a PTO program can be fine tuned. One employer I know grants four days of sick leave each year but sick leave is used only on the second day of an illness. The first day is either unpaid or the employee can choose to use a vacation day PTO). This employer informs me that dramatic changes have occurred in employee usage by this simple change. Another employer I am aware of allows sick leave benefits only on the third day of an absence.

Here is a thought: if the standard homeowner was more interested in insurance money as opposed to their home, fire insurance companies would go bankrupt. Employees are no different, if they are more interested in using sick leave as opposing to banking it against future significant illnesses, then you’re sick leave program must be adapted to this attitude otherwise your costs will skyrocket.

Third, as previously noted, I have already written about no-fault attendance programs. There are a couple points, however, that I would like to emphasize about these programs as part of this e-zine. To begin, while they are probably the most difficult type of program to administer, they also have the greatest likelihood of either controlling the unwanted behavior or expediting the discharge of the employee. They are difficult because absences must be carefully monitored over a rolling twelve months. But, on the positive side, the reason for the absence is not important. The no fault program assumes that people become ill. A legitimate absence or two is of no significance in the no-fault program. It is only a repeated pattern that becomes an issue and that pattern can quickly lead to the termination of employment.

Additionally, the no-fault program operates in such a way as to give significant deference to the person who has incurred a substantial illness. This is true because the typical program revolves around an incident not simply an absence. An incident can be a one day absence or it can be a 45 day absence to recover from a heart attack. Since both are given exactly the same weight, the no-fault program does not work to the disadvantage of good employees who have a single, significant illness; hip replacement surgery comes to mind or something similar.

As noted, however, the challenge to a no-fault program is consistent management of the program. Records need to be impeccably kept and the employer needs to have the highest concern for consistency of application.

One final point on no-fault programs, what I particularly like about them is that they can be presented to emphasize that the employee is needed in the workplace. The quantity, timeliness and sometimes the quality of work suffers when employees are not present. It does not make any difference why someone is absent, the absence impacts work product. Thus, for the employer to attempt to distinguish between unexcused and excused absences may make sense as it applies to employee culpability, it makes no sense whatsoever on whether work is being performed. “We hired you because we need you and we need you all the time,” should be the message we send to our employees.

Fourth, now a word of caution. The law protects certain absences from any attendance control program. For example, an absence, covered under the American Family Medical Leave Act (AFMLA) cannot be the basis for disciplinary action under either a no-fault or other attendance program. Also, in many states, Illinois and California as examples, employees who are the victims of domestic violence or sexual abuse have special rights to employment and are entitled to the same protections found in the AFLMA. Likewise absences cause by jury duty cannot be used for discipline or discharge. Additionally, in some states being subpoenaed to testify in a criminal or civil procedure cannot be cause for disciplinary action. I suggest checking with your state department of labor if you are unsure or have questions.

Note: the only protection that the Employer has against abuse for any of the above situations is the right to demand proper documentation. Self diagnosis and/or self serving statements are insufficient to trigger the protections of law. You have the right to require the documents necessary to establish the truthfulness of what the employee is asserting.

Fifth and finally, the above discussion focuses on threats, sanctions, discipline and ultimately employment termination as methods of controlling absenteeism problems. There is another side to addressing attendance problems. Do your employees experience the workplace as a positive, even if the work is not always the most personally gratifying? I have a strong suspicion that when employees enjoy coming to work that the Employer has substantially fewer problems with attendance. As you will note below, the next e-zine addresses the topic of making work a better place to be.

Next Month: so I already let it out, I plan to start a five part e-zine series on the topic of making work a better place to be. The first installment takes on the topic from a global perspective. The next four installments will break the global into specific component parts.

What barriers are there to imposing a ceiling on the accrual of vacation time?

The essence of this question involves the right of the Employer to impose a “use it or lose it” policy with regard to vacation time. Under this policy, for example, if an employee is allowed to accumulate 120 hours of vacation time, then his/her total accrual will never exceed 120 hours regardless of the accrual rate or the amount of vacation time actually taken. Since vacation accrual is typically noted on each paycheck, the amount shown on a paycheck will never exceed 120 hours regardless of whether any vacation time has been taken. Thus it is possible for the employee to receive less of a benefit then he/she is entitled to by not taking any vacation time.

One of my graduate students recently wrote a paper in which she found that in 2004 Americans gave back $22 billion worth of vacation time; obviously a very significant number which makes this a significant issue.

The question asks about barriers to imposing a use it or lose it policy. My first response is to note that it is a subject not covered under Federal wage and hour legislation. Rather it is the subject that is in almost every case covered under state regulations and found as part of administrative code (however that is depicted in each individual state). I have been most successful in finding information from individual states by looking for those provisions covering payment and collection of final wages and compensation.

I have yet to find any state that does not permit a use it or lose it policy, but the right of the employer to implement such a policy is always linked to two conditions. First the employer must clearly communicate its policy to employees. Second, the employee must have had reasonable opportunities to use vacation time. Since I believe there is always some risk to employers when employees receive a reduction in wages and/or benefits, my thought is that annual notification to each employee, perhaps the first week of January, of the use it or lose it policy and the amount of vacation time currently accrued would help fulfill the employers affirmative notice responsibilities. The employer would also, undoubtedly, be wise to have a system by which employees were given notice of potential accrual loss the pay period before any losses occurred.

Quote:

The entire world is a narrow bridge
But the main thing is not to fear.

Likutey Moharan 2:28

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.