When an employee works a standard five-day week, one can assume 260 workdays exist annually. After subtracting 10 days on average for vacation and another 10 days for federal, state and local holidays, an employer could expect 240 workdays a year per employee.
Managing absenteeism for these 240 days historically has been straightforward. Work-related injuries were handled pursuant to the state worker's compensation laws. Other absences were handled under the employer's policies relating to absences or pursuant to a collective bargaining agreement (CBA). A company's absence policy would inform employees in advance of the employer's attendance expectations. Most CBAs would contain provisions relating to attendance expectations.
A typical policy or CBA would provide for a progressive discipline procedure for unexcused absences. Thus, one such absence would warrant a warning and subsequent absences might lead to termination. Some employers use a point system for unexcused absences and others have two absenteeism rules, one for a certain number of unexcused absences and one for excessive total absences. The key to any system is consistency in application to avoid wrongful-termination lawsuits, along with working within the proper leave-designation statutes and regulations.
Laws Governing Absenteeism
Today, employers must not only comply with company policies and/or CBA and worker's compensation laws, but also The Americans with Disabilities Act (ADA) if it employs 15 or more employees for 20 weeks in any given year. In addition, The Family Medical Leave Act (FMLA) applies to employers with 50 or more employees, if the employees work within a 75-mile radius of the premises for at least 20 weeks in any given year.
Which Law Applies?
Generally, the ADA only applies to permanent or long-term conditions. Although there could be a work-related injury that causes a permanent disability under worker's compensation, injuries governed by worker's compensation are predominately temporary with no long term impact. It is possible that a work related injury will fall within the confines of the ADA or FMLA.
ADA and FMLA may cover the same injury, even though the definition of a disability under ADA is more restrictive. FMLA requires that an employee be granted time off for a non-employee illness or injury as well as an injury to the employee. ADA and worker's compensation laws are restricted to illness or injury to only the employee. It is this area of injury to the employee where the overlap could occur.
In the event an employer is subject to FMLA, ADA and/or worker's compensation laws, absences that fall under these laws cannot be considered when taking disciplinary action under a company policy or CBA, as such a basis for discipline would be considered prohibited retaliation.
Requirements for Coverage
After determining that it is subject to one or more of these laws, the employer must consider whether a particular situation meets the requirements for coverage under the applicable law or laws.
FMLA: Employees are eligible for leave under FMLA if they meet certain requirements: 1) the individual has been employed by the employer for at least 12 months (the 12 months need not be consecutive); and 2) the employee has worked at least 1250 hours in the past 12 months.
ADA: The ADA protects employees who have a qualifying disability. The employee must be: 1) considered disabled pursuant to the law; 2) qualified to do the work; and 3) able to perform the essential functions of the job with a reasonable accommodation. A reasonable accommodation is generally defined as an alteration to the work environment in order for the disabled individual to a) perform the essential functions of the job; b) enjoy equal benefits and privileges of employment; and c) be considered for an available position. A reasonable accommodation is not required if it will cause an undue hardship on the employer. To determine if an undue hardship will be caused, an employer must consider: 1) the nature and cost of the accommodation; 2) the overall financial resources of the employer; 3) the size, organization and function of the employer's workforce; 4) the number of facilities operated by the employer; and 5) the intrusiveness of the accommodation.
Worker's Compensation: To be eligible for worker's compensation, the employee's injuries must be job-related.
Compliance in Calculating Leave
Once an employer has established that the laws apply to a qualified event, the next step is to determine how much leave an employee is entitled to receive.
FMLA: The FMLA allows an employee, male or female, to take as many as 12-weeks leave per year for one or more of the following reasons: 1) birth of a baby or the care for a newborn; 2) care of an adopted child or foster child; 3) care for the employee's spouse, child or parent with a serious health condition; and 4) a serious health condition that renders the employee unable to perform his/her job. A serious health condition under the FMLA is defined as an illness or injury that involves a) a period of hospital treatment; b) a period of incapacity requiring absence from work; c) incapacity due to pregnancy or prenatal care; or d) a period of absences for treatment of a chronic medical condition.
Under FMLA the year of leave can be calculated using: the calendar year; any fixed 12 month period; the 12-month period measured forward from when the FMLA time off began; or a rolling www.metalformingmagazine.com METALFORMING/APRIL 2003, 73 12-month period measured backward from when the FMLA time off began. The employer can pick the time measurement wanted, but, once established, it must be consistent.
ADA: Under the ADA there is no specific time period for time off. It falls within the reasonable-accommodation requirements discussed earlier.
Worker's Compensation: Under worker's compensation, the amount of time off will be dictated by the medical requirements of the injury and the employee's physician, although the employer can request an independent medical exam to test the reasonableness of the attending physician's directive.
Conclusion: The first step for the conscientious employer is to pay as close attention to employees as it does to marketing and accounts receivable. Most employers do not seem to care for this side of the business, and shy away from dealing with employer/employee relationship issues. However, when a situation arises and one of the employment laws is violated, it can add a heavy burden to the bottom line.
Maintaining a clear policy on absenteeism will give employees comfort in knowing in advance the company's expectations, and will help managers be consistent with employees and comply with employment laws.