You’re Late Again: Attendance Problems Without the Lawsuit

We're going to talk about attendance because I've had so many calls about attendance lately.

It is crazy.

Attendance should be very simple, folks.

Employees are supposed to come to work.

That's what we hire them to do, to come to work.

But sometimes the reason they're not at work implicates paid sick leave or disability accommodation or family leave or pregnancy protections or workers' compensation or some other protected right.

Today, I want to explain to you how you can enforce legitimate attendance expectations without turning an ordinary attendance problem into a legal claim.

All right? So, first thing I want you to know right off the bat, and I love being able to say yes as an employment lawyer.

I think a lot of times attorneys will say no to everything to protect themselves, and that's really unhelpful, right? You're calling a lawyer because you need advice.

Here's the thing I'm going to tell you where I can say yes.

Yes, you are allowed to have attendance and punctuality expectations for your employees, even exempt employees.

Yes, exempt employees get a fixed salary that is not subject to variation based on the quantity or the quality of the work.

But if you need them there from eight to six because they're a leader and their team needs them, then you can tell them you need to be here from eight to six, all right? You're absolutely allowed to have those rules.

No problem at all.

The problem usually arises when you make an exception to your attendance policy.

It's not about the attendance rule itself.

It's because you're not following the attendance policy or the attendance rule.

That's the situation.

That's the problem, okay? So the first thing I want you to think about here is you need to separate the attendance issue from a performance issue.

So if somebody's having trouble getting their work done, not doing what they're supposed to be doing, all right? and then they call in sick, you're not gonna discipline them from calling in sick.

You're gonna hold them accountable for their performance.

So you need to keep those things separate.

Now realize that when you start holding somebody accountable for their performance, they may say, wait, hold up, that's stressing me out.

I need an accommodation, right? So sometimes you have an issue with an employee who says, look, I can't come to work.

I'm having a medical issue.