Perfect Attendance Policies and the COVID-19 PandemicKAM
By George Adams and Paul Goatley, Fisher Phillips, LLP
Perfect attendance policies can be powerful tools. They typically offer cash bonuses, public recognition, in-kind prizes, extra time off, or other enticements to give employees additional incentive to regularly and timely come to work. Though perfect attendance polices can be beneficial to both employers and employees, they may run afoul of certain protected leave benefits, such as the Families First Coronavirus Response Act (“FFCRA”), if not administered correctly. The COVID-19 pandemic has caused a lot of people to miss a lot of work this year for one reason or another. In addition to legal considerations, the intersection between perfect attendance policies and the pandemic can raise financial and morale issues. Here are few issues to consider regarding your perfect attendance policy and the COVID-19 pandemic.
Should Employees Who Take Leave Under the FFCRA Receive Perfect Attendance Benefits?
As the coronavirus surges and employees take paid sick leave or medical leave under the FFCRA for reasons related to a COVID-19 exposure, positive test result, or childcare obligation, many employers question whether such absences can (or should) count against employees under perfect attendance policies. This is a purely legal question which courts, ultimately, will answer. The answer is likely to be “no.”
If the reason for an FFCRA absence qualifies as a serious health condition under the Family Medical Leave Act (“FMLA”) (e.g., a COVID-19 diagnosis and quarantine) the absence should not be counted against the employee for purposes of determining perfect attendance. The U.S. Court of Appeals for the Sixth Circuit (which has jurisdiction in Kentucky, Michigan, Ohio, and Tennessee) held last year that leave taken under the FMLA must be treated the same as other forms of excused leave for purposes of administering a perfect attendance policy. For example, if vacation days, bereavement leave, jury duty, military duty, holidays, etc. are treated as excused under an employer’s perfect attendance policy, FMLA absences must be as well.
So how should forms of FFCRA leave (e.g., caring for a child whose school is closed) that are not FMLA-protected be treated with respect to perfect attendance policies? The reasoning above offers some clues. Like the FMLA, the FFCRA prohibits interfering with or discriminating against an employee’s exercise of FFCRA leave rights. Because FFCRA leave is “excused,” a court (or at least the Sixth Circuit) may find employers must treat it like they treat other forms of excused leave for purposes of perfect attendance.
If a COVID-19-Related Absence Is Not Protected, Should It Be Counted Against Employees?
Legal considerations are only part of the equation when determining whether COVID-19-related leave should count against employees for purposes of perfect attendance. An employee who has a COVID-19-related need for leave but who is not eligible for FFCRA leave and has no other form of excused leave (e.g., PTO or FMLA) available must make a choice. The employee must either take an unexcused absence and lose the benefit (and maybe receive discipline) or come to work and possibly create other problems (e.g., exposing others to the disease). And what about employees who are absent because of a government ordered shut down, the employer’s decision to shut down, or other circumstances beyond the employee’s control? Whether absences should count against perfect attendance in circumstances such as these may present more practical and moral, rather than legal, issues for an employer.
Is it fair to “punish” employees for such absences? Will they think it’s fair? If employees believe your business can “afford” to give them perfect attendance benefits despite unprotected COVID-19-related absences and you don’t do so, they probably will hold it against you. Many people are experiencing great anxiety and stress (including financial stress) from the pandemic and this would add fuel to that fire.
Even when employees have no legal recourse, they have other ways of striking back. Among other things they can express their negative feelings about you to the world (literally, via the Internet), invite a union to organize the workforce, file petty complaints with KOSH, KDOL, and other agencies, and take a job elsewhere as soon as the opportunity arises. If you have compelling business reasons for not excusing unprotected COVID-19-related absences, you may avoid some of the push back by explaining this to your workforce and expressing sympathy and optimism for the future.
Because perfect attendance policies are discretionary (unless part of a union labor agreement) you also have the option of suspending your policy entirely (“no one gets a bonus”). This will not be popular, but it would relieve you of providing the benefit and make it easier to excuse absences that would otherwise count against employees (including, perhaps, for disciplinary purposes). If you do this, it generally is best not to make the change during the middle of a perfect attendance qualifying period.
Employers must be careful not to violate employees’ legal rights, and it can be tricky. Even if you legally could count a COVID-19-related absence against an employee, however, relaxing your perfect attendance policies and being more flexible with your workforce may generate the exact results underlying such policies – increasing employee productivity and morale.
This article provides an overview of certain legal issues. It is not intended, and cannot be construed, as legal advice for any purpose. For more information, contact an attorney in Fisher & Phillips’ Louisville, Kentucky office (502-561-3990).