How should an employer handle an excessively absent employee? Manesh Rath, a partner with the Washington, D.C. law firm of Keller and Heckman, LLP, gave some tips to attendees at SHRM's 2006 Employment Law & Legislative Conference.
Excessive absenteeism is an issue many HR practitioners must confront in the workplace. In order to properly address excessive absenteeism, says Rath, employers must first become highly familiar with the laws protecting employee leave, primarily the Family and Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA).
What Constitutes "Caring For" a Family Member?
Under the FMLA, an employee is entitled to job-protected leave for pregnancy, prenatal care, a serious health condition, or to care for a close family member with a serious health condition. It is this last reason for leave that is often problematic for employers managing leave abuse, says Rath. For example, in the case of Tellis v. Alaska Air, an airline employee claimed that driving out of state to pick up a car for use by his family constituted "caring for" his very pregnant wife. The employee left work without obtaining any consent for leave and, while en route with the car, his wife gave birth to the baby.
The court in the Tellis case held that the employee's time away from work to retrieve the car did not qualify as FMLA-protected leave to "care for" a seriously ill family member. Instead, the court held that to "care for" a family member, the employee must be in close, continuing proximity. In addition, the court stated that "care" includes activities such as medical, hygienic or nutritional care, as well as psychological comfort. Although the FMLA does allow for leave to provide transportation to a doctor's appointment or other medical care, the transportation need in the Tellis case did not suffice, says Rath.
Call-In Requirements for Leave Management
In order to curb excessive absenteeism, some employers rely on "call-in" requirements for employees. In other words, employees are required to call a designated person - usually a manger or supervisor and inform that person that they will not be able to attend work. Also a critical part of an effective call-in procedure is requiring that the employee calling in actually speak to the designated management contact, says Rath. No voice mails or emails allowed.
How far can an employer go in regulating employee leave through a call-in policy? Consider the case of Callison v. City of Philadelphia. In that case, Callison, a dispatcher for the city's fleet management department, took many absences due to a "deep anxiety reaction" to stress. As a result, Callison was placed on an excessive absence list that required him to obtain medical certification for every absence. In addition, under the city's call-in policy, Callison was required to call his employer when he left home to go to a doctor's appointment and to call his employer when he returned from the doctor's appointment. When Callison failed to comply with the city's rigorous policy, he was disciplined. When Callison sued under the FMLA, the court affirmed the city's policy, saying it did not interfere with his FMLA rights or any privacy rights he may have. Although the city's policy was very strict, it was not illegal.
Other Techniques to Curb Absenteeism
What are employers doing to effectively manage absenteeism? Consider a few of the following techniques offered by Rath:
- Familiarize yourself with the laws governing employee leave
- Train managers on how to effectively keep records of employee absences
- Use incentive pay for perfect attendance
- Schedule shifts that appeal to employees
- Cross train employees to cover for absent employees
- Know when discipline for excessive absenteeism is legal and appropriate