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Don’t Let Attendance Policies Trip You Up

March 11, 2020
Developed correctly they can help, but watch out for legal landmines.

Employee attendance issues give managers some of their biggest headaches, but it’s surprising how many employers pay little attention to developing policies to keep absences in check while avoiding legal liability.

“Careful messaging regarding your attendance expectations and requirements can really help curb attendance issues as well as give you solid grounds for discipline and termination if those expectations and requirements aren’t met,” observes Kara E. Shea, an attorney with the law firm of Butler Snow.

This can be a real issue when employers rely on “no-fault” attendance policies, where workers accumulate points for unexcused absences, late arrivals or early departures. Once a worker hits a certain number of points, they can be disciplined or even fired. These policies are called No Fault because they usually don’t require a doctor’s note or other equivalent to justify an absence.

This practice has come under attack by the Equal Employment Opportunity Commission (EEOC) in cases where No Fault policies clash with the Americans with Disabilities Act (ADA) requirement that employers engage with an employee to achieve a reasonable accommodation. No fault policies also must exclude Family and Medical Leave Act (FMLA) absences from any point system, along with jury duty and leave to perform military service.

What kind of attendance policy should a company adopt? Shea has suggestions based on her experience, beginning with clearly communicating an employer attendance policy. “Tell them why you need them to be there,” she recommends, and include a statement that reliable attendance is required to provide excellent customer service, and ensure co-workers have support needed to do their jobs.

“There are lots of different reasons you need to be able to count on your employees to show up for work, and some may be specific to your particular business,” Shea adds. For almost all jobs, reliable attendance is an essential job function, and that should be spelled out in company policy because it may be relevant to determine the accommodations you may be required to make for employees covered by the ADA, she notes.

Also, describe notice requirements very clearly. “My basic rule of thumb is employees should be required to give as much notice of absences as they possibly can,” she suggests. If they have a doctor’s appointment two months from now, they shouldn’t wait until that day to let you know they won’t be coming in. The policy should state that last-minute notice of long-planned absences may result in them being unexcused.

Of course, some absences truly are unpredictable and last-minute, like suddenly discovering a child is sick or a car is broken down. But in those cases make clear that they should report to the employer at the earliest time practical, and not wait to bring it up after they return to work.

“Let them know that unless they are in some truly dire situation in which they can’t call in before or at the beginning of their workday—and this will be rare—waiting to tell you the deal after they arrive late to the office isn’t going to cut it,” Shea says. Be specific about how employees report unexpected absences, and whether it can be done by phone, voicemail, e-mail or text.

You also should describe how the policy interacts with your company’s paid leave policies. “Too often, employees—and some employers—think that if they have paid leave available, they can come and go as they wish with no ramifications,” Shea explains.

Always remember that it’s critical to enforce your policy in a consistent and nondiscriminatory fashion, Shea warns. “You can set the rules, but be sure you are applying them to everyone and aren’t making exceptions for favored employees, and make sure your supervisors get that message loud and clear.”

About the Author

David Sparkman

David Sparkman is founding editor of ACWI Advance (, the newsletter of the American Chain of Warehouses Inc. He also heads David Sparkman Consulting, a Washington D.C. area public relations and communications firm. Prior to these he was director of industry relations for the International Warehouse Logistics Association. Sparkman has also been a freelance writer, specializing in logistics and freight transportation. He has served as vice president of communications for the American Moving and Storage Association, director of communications for the National Private Truck Council, and for two decades with American Trucking Associations on its weekly newspaper, Transport Topics.

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