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Disciplinary Action on Attendence

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We have an employer that does not discipline the employees for poor attendace for fear of a lawsuit, even though these rules have been set forth in the employee handbook for years.
Half of the emplyees are absent at least once a week, the other half come in and leave whenever the feel like it.
We have update the handbook in hopes that everyone would follow the rules once politely reminded…the situation has only gotten worse.
Can we enforce these older rules or do we need to set new guide lines? What can I tell my boss about the legal ramifications regarding any disciplinary action we may take?
thank you

There is an appropriate way to begin enforcing a new attendance policy in the workplace.

But first, a review of the current situation. Every employer has two sets of policies – written and unwritten. (In face, psychologists tell us nearly every group has an unwritten set of “norms”.) The unwritten policies are why it’s considered inappropriate to come to work wearing a tuxedo, or dressed only in a bath towel. There may not be a “no bath towels” policy in the handbook, but it’s still an unwritten rule.

In terms of the attendance policy, the company currently has a set of unwritten rules that is very different from the written rules. The official policy may be “employees are allowed 7 absences per year” but the unofficial policy seems to be that even if employees are absent 20 or more times per year, or come and goe as they please, there are no consequences.

The challenge here is to make the written and unwritten policies the same.

[This is an unusual problem. Most people work because they need the money. Are all of the employees on salary? If so, are they being docked when the miss a full day of work, as is legally permissible?]

The questions are essentially, “Can an employer change the attendance policy? And if so, how should the employer go about it?”

Every employer has the right to change company policies at any time they choose, and to enforce the new policy. As you have already seen, simply updating the employee handbook does no good, unless the policy is enforced.

If you are in Human Resources, you know by now that most employees don’t respond well to “gentle reminders.” If there are no consequences, employees will continue to violate the policy.

Ironically, the current problems may stem in part from an attendance policy that’s too strict. When company policies are too severe, supervisors are reluctant to enforce them, and chaos results. So the employer should think hard about what he or she truly believes is a reasonable attendance policy.

This is going to work better if the employer implements a “new” attendance policy. (Even if the “new” policy is the same as the one written in the employee handbook.)

The employer should issue a memo stating the “new” attendance policy, the date it starts, and the consequences for violating it. If necessary, the employee handbook can also be updated (but new policies can be implemented without updating the handbook.)

For example, the new policy might be that employees are permitted no more than once absence per month, and can be absent no more than 7 days total over the calendar year. In addition, employees can be no more than 10 minutes late and must work their entire scheduled shift. A reasonable standard for “unexcused” tardiness or leaving work early might be once every three months.

Reasonable consequences would be a verbal warning for the first offense, and written warnings for the second and third offense. Finally, an employee who violated the attendance policy for the fourth time would recieve a final written reprimand and be terminated. Each reprimand — even the verbal one — should be documented. The employer should have the worker sign each written reprimand. Both the employee and employer should have a copy. Each reprimand should include the words “further violations will result in disciplinary action up to and including termination.”

The employer should start every employee with a “clean slate.” In other words, if an employee has already been absent 7 days this year, and the new attendance policy begins on April 1, the employee will have a total of 7 days to be absent between April 1 and December 31, 2008. (It becomes a problem if the employer is retroactively punishing an employee for a policy that the employee didn’t know about.)

Every employee should have a copy of the memo to keep, and should sign and return one copy to the employer. Signing and returning the memo indicates that the employee understands the policy. (The easiest way to do this is to have the employees sign the new policy when they pick up their paychecks.)

It’s usually best to have employees sign the memo on Thursday or Friday when the new policy is implemented on Monday. If employees have too much notice, attendance will be very low in the days leading up to the implementation of the new policy.

Some employers will also choose to have a group meeting to introduce the new attendance policy, or to verbally discuss the new policy with each employee. It’s wise to do so, because some people respond better to verbal information than to written information. It’s important to answer any questions that employees may have, and to assure them that the new attendance policy applies to everyone.

Then, all the employer has to do is consistently enforce the new policy. As long as the employer enforces the policy equally, there should be no fear of lawsuits or repercussions. If the employer enforced the policy for Caucasian employees, but not for African-American employees, that would be cause for a lawsuit alleging illegal discrimination based on race.

Most companies enforce a “no-fault” attendance policy, meaning it doesn’t matter why the employee is absent. Others consider only the employee’s illness, or that of a minor child, sufficient reason for an absence.

Consistency is the key here. Suppose John misses work twice this month due to hangovers, and is written up. So does Suzie, but she is a single mother who misses work because her daughter has a cold. If the employer doesn’t write Suzie up, the attendance policy will quickly disintegrate into chaos again.

So, the employer simply has to enforce the policy consistently. It may even be necessary to terminate an employee or two, who cannot adjust to the new attendance policy. But, the final result will be greater productivity for the company.

Employees are entitled to up to 12 weeks of FMLA leave when they have a serious health condition. FMLA leave can also be used to care for a son, daughter, parent or spouse with a serous health condition, or to bond with a new child. However, the employer need not fear repercussions with FMLA for enforcing an attendance policy.

Under FMLA the employee needs to advise the employer within 2 days after returning to work, that the absence was covered under FMLA. In addition, the employer has the right to require medical certification for all FMLA leave. Any employee who cannot provide certification, is not entitled to FMLA leave. The same form is used, whether the leave is for the employee’s “serious health condition” or a family member’s.

If employees are in the habit of abusing FMLA, it would be wise to advise them of the certification process as part of the “new” attendance policy.