Employers are often frustrated by an employee’s repeated absences. Unexpected absences can cause a negative impact in the workplace, creating project delays and miscommunication. Unfortunately, this problem does not seem to be going away any time soon. The Society for Human Resource Management recently reported that employee absences due to mental health concerns alone are surging and increased 33% between 2022 and 2023.
Part of employers’ frustration is that they feel at a loss for how to manage chronic absenteeism. Employers wish to be supportive of their employees and compliant with all applicable laws, yet employers also must maintain a reliable workforce.
The first step in addressing this issue fairly with employees is ensuring the company’s attendance expectations are clearly stated in writing and delivered to the employee. The company should ensure the employee has acknowledged receipt of these expectations in writing and place the acknowledgment in the employee’s personnel file. One place to insert expectations is in a written job description. If an employer expects a full-time work schedule with regular and consistent attendance on-site, then the employer should state so in the job description. In addition, a written offer letter can provide additional details regarding the expected work schedule and attendance obligations.
Handbook Policies
Another place to insert expectations is through handbook policies. Many employers have specific preferences about how employees should notify employers of an absence. These attendance details should be set forth in an attendance policy. In addition, the employer should state clearly what the potential disciplinary consequences may be in the event an employee fails to comply with the policy. Some employers may also want to define what “excessive” absenteeism in the workplace is, such as referencing a specific number of unexcused absences in a particular time period.
Employers should also clearly identify in a handbook any leave of absence policies available in the workplace. Employers with 50 or more employees must comply with the Family and Medical Leave Act, which affords eligible employees with, among other things, 12 weeks of protected leave within a 12-month period for the employee’s own serious health condition. This leave may be taken intermittently, as a reduced schedule, or in a block leave. Many NH employers also voluntarily adopt sick leave policies.
ADA Compliance
Employers with 15 or more employees must consider their obligations to provide leave as a reasonable accommodation to meet their obligations under the federal Americans with Disabilities Act (ADA) and NH employers with six or more employees must provide leave under the NH Law Against Discrimination.
The ADA prohibits discrimination against an individual who can perform the essential functions of their job, either with or without a reasonable accommodation. The prohibited discrimination includes “not making reasonable accommodations to the known physical or mental limitations of an otherwise qualified individual with a disability,” unless the accommodation would impose an undue hardship on the employer. An “undue hardship” is “an action requiring significant difficulty or expense,” when considering various factors, such as the nature and cost of the accommodation, the employer’s financial resources, the size of its workforce, and the impact of the accommodation on its operations.
A reasonable accommodation is, generally, “any change in the work environment or in the way things are customarily done that enables an individual with a disability to enjoy equal employment opportunities.” The ADA specifically identifies job restructuring, part-time or modified work schedules, and reassignment to a vacant position as examples of potential reasonable accommodations. Case law and Equal Employment Opportunity Commission guidance make clear that employers must provide leave if it is an appropriate accommodation under the ADA.
In other words, when an employee is absent due to a medical condition, employers should consider their obligations under applicable leave policies, as well as under the ADA.
The employer can request that the employee provide documentation to assess if the medical condition qualifies as a disability under the ADA and, if so, any limitations associated with the disability and the duration of any such limitations. Employers should inform the employee of what specific information is required from the healthcare provider and should likewise ensure that the healthcare provider is given the employee’s essential job functions to aid in making these assessments.
Assuming the employee is absent due to an ADA-covered disability, then the employer and employee should engage in an “interactive dialogue” to discuss potential accommodations. The employer can invite the healthcare provider to submit accommodation suggestions. In the event an employee asks for a leave of absence in a block of time or intermittently, the employee is, in effect, requesting an accommodation in the form of an exception to the employer’s attendance policy.
An employer may be required to provide such an accommodation under the ADA, even in cases where the employee has exhausted all forms of leave and paid time off, or even in cases where the employer does not offer leave as an employee benefit or the employee is not eligible for leave under the employer’s policies, unless the employer can show that doing so is either “unreasonable” or will cause an undue hardship.
The best practice for employers is to carefully consider the issue of attendance in advance of it becoming a workplace problem. This means communicating acceptable standards with employees and adopting clearly defined attendance and leave policies, as well as an ADA- compliant policy. By clearly setting expectations with employees, using well-written company policies, and carefully considering the applicable employment laws, employers can help prevent excessive absenteeism from becoming a frustrating workplace problem. n
Margaret “Peg” O’Brien is a director and chair of McLane Middleton’s Employment Law Practice Group in Manchester. She assists employers with legal compliance and risk management in all phases of the employment relationship, as well as defense of employers in matters pending before government agencies and courts. She can be reached at margaret.obrien@mclane.com.
Current Issue - June 2024