New York has the most restrictive law, prohibiting discipline for legally protected absences (like FMLA, disability, religious needs) under “no-fault” policies, making it the closest to having a “no-fault ban” for those crucial leaves. Other states, like California, also have strong laws (CFRA, PDL) protecting specific leaves, meaning employers must always account for these protected reasons, even in general point systems.
Key State Examples
- New York (NY): Since February 2023, NY Labor Law § 215 prohibits employers from disciplining or retaliating against employees for lawful absences protected by federal, state, or local law, effectively restricting traditional no-fault systems for such leaves.
- California (CA): State laws like the California Family Rights Act (CFRA) and Pregnancy Disability Leave (PDL) require employers to allow protected leave, meaning any attendance policy must exclude these absences from points or penalties.
What These Policies Mean
- No-Fault Policies: These systems track absences (tardies, no-shows) and assign points regardless of the reason, leading to discipline if a threshold is met.
- Legally Protected Absences: Even in states without explicit bans, federal and state laws (like FMLA, ADA, state sick leave laws) mandate certain leaves (e.g., serious health conditions, disability accommodations, family needs) that cannot be penalized under a standard no-fault system.
What are No-Fault Attendance Policies?
No-fault attendance policies, also known as point-based or occurrence-based attendance policies, are disciplinary systems that address employee absenteeism and tardiness regardless of the reason for the absence. Unlike traditional attendance policies that distinguish between excused and unexcused absences, no-fault policies treat all absences the same, with certain exceptions.
The core principle is that consistent attendance is essential for business operations, and excessive absenteeism, regardless of the cause, disrupts productivity and imposes costs on the employer. These policies aim to create a clear, objective, and consistently applied system for managing attendance.
Key Features of No-Fault Attendance Policies
Several key features characterize no-fault attendance policies:
- Point System: Employees accrue points for each absence or instance of tardiness. The number of points assigned may vary depending on the duration of the absence or the lateness.
- Progressive Discipline: As an employee accumulates points, they progress through a series of disciplinary actions, such as verbal warnings, written warnings, suspensions, and ultimately, termination.
- Point Decay or Restoration: Some policies include a mechanism for points to decay or be restored over time if the employee maintains good attendance. This incentivizes improved attendance behavior.
- Specific Point Thresholds: The policy clearly defines the point thresholds for each disciplinary action, ensuring transparency and consistency.
- Limited Exceptions: While the policy is generally “no-fault,” most policies include exceptions for absences protected by law, such as those covered by the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), or workers’ compensation laws.
- Clear Communication: The policy is clearly communicated to all employees, outlining the rules, point system, disciplinary actions, and exceptions.
Legal Considerations
While no-fault attendance policies offer administrative simplicity, employers must be mindful of several legal considerations:
- FMLA: The Family and Medical Leave Act (FMLA) provides eligible employees with up to 12 weeks of unpaid, job-protected leave for specified family and medical reasons. Employers cannot penalize employees for taking FMLA-protected leave under a no-fault attendance policy.
- ADA: The Americans with Disabilities Act (ADA) requires employers to provide reasonable accommodations to qualified individuals with disabilities. This may include modifying attendance policies to accommodate disability-related absences. Employers must engage in an interactive process with employees to determine if a reasonable accommodation is possible.
- Workers’ Compensation: Employees who are absent due to work-related injuries or illnesses are typically protected under workers’ compensation laws. Employers cannot penalize employees for absences related to compensable injuries or illnesses.
- Discrimination: Employers must ensure that no-fault attendance policies are applied consistently and do not disproportionately impact protected groups, such as employees based on race, gender, religion, or age.
- State and Local Laws: Some states and localities have laws that provide additional protections for employees regarding sick leave or other types of leave. Employers must comply with these laws when implementing and administering no-fault attendance policies.
- Contractual Obligations: Collective bargaining agreements or employment contracts may contain provisions related to attendance policies. Employers must adhere to these contractual obligations.
Advantages of No-Fault Attendance Policies
- Simplicity and Objectivity: No-fault policies are relatively simple to administer and provide a clear, objective standard for evaluating attendance.
- Consistency: The consistent application of the policy can reduce claims of favoritism or discrimination.
- Reduced Administrative Burden: Eliminating the need to evaluate the reasons for absences can save time and resources for HR and management.
- Improved Attendance: The policy can incentivize employees to improve their attendance by creating a clear consequence for absences.
- Focus on Performance: By addressing absenteeism, the policy can help improve overall employee performance and productivity.
Disadvantages of No-Fault Attendance Policies
- Potential for Inequity: The policy may penalize employees for legitimate absences, such as those due to illness or family emergencies, which can lead to resentment and morale issues.
- Risk of Legal Challenges: Failure to properly account for legally protected absences can result in legal challenges under the FMLA, ADA, or other laws.
- Negative Impact on Employee Morale: Employees may feel that the policy is unfair or insensitive to their personal circumstances, which can negatively impact morale and engagement.
- Presenteeism: Employees may come to work sick to avoid accruing points, which can spread illness and reduce productivity.
- Difficulty in Addressing Underlying Issues: The policy may not address the underlying reasons for absenteeism, such as job dissatisfaction, stress, or health problems.
- Potential for Abuse: Employees may strategically use their allowed absences, leading to predictable disruptions in workflow.
Best Practices for Implementing No-Fault Attendance Policies
To mitigate the potential disadvantages and ensure legal compliance, employers should consider the following best practices:
- Clearly Define the Policy: The policy should be written in clear, concise language and easily accessible to all employees.
- Provide Adequate Training: Managers and supervisors should be trained on how to administer the policy consistently and fairly.
- Make Exceptions for Legally Protected Absences: The policy should clearly state that absences covered by the FMLA, ADA, workers’ compensation, and other applicable laws will not be counted against employees.
- Consider a “Good Faith” Exception: Include a provision that allows for exceptions in extraordinary circumstances, such as natural disasters or family emergencies.
- Offer Employee Assistance Programs (EAPs): Provide resources to help employees address underlying issues that may be contributing to absenteeism, such as stress, mental health problems, or substance abuse.
- Regularly Review and Update the Policy: The policy should be reviewed and updated periodically to ensure compliance with changing laws and regulations and to address any unintended consequences.
- Communicate Openly with Employees: Be transparent about the purpose of the policy and address any concerns or questions that employees may have.
- Track Attendance Data: Monitor attendance data to identify trends and patterns and to evaluate the effectiveness of the policy.
- Focus on Employee Well-being: Promote a culture of employee well-being and provide resources to help employees stay healthy and productive.
Many of our organizations have dealt with absenteeism, both chronic and occasional. These absences do have an impact on all of our organizations from productivity to organizational culture and employee conflict/retaliation, turnover, etc. “Each year, “US workers are absent from work for more than ½ billion work days…according to a 2016 report published by the CDC, productivity losses from missed work cost employers $225.8 billion, or $1,685 per employee, each year…absenteeism causes financial issues, loss of productivity and a decrease in workplace morale.”[i]
The yearly cost of employee absenteeism is 225.8 billion dollars.
There’s no doubt about it: $225.8 billion is a lot of money…that comes out to $1,685 per employee, per year. Why is absenteeism so costly? Absenteeism not only reduces productivity, but can also lead to increased spending on hiring and onboarding new employees, paying overtime for employees covering open shifts, and unplanned downtime.
https://www.teamsense.com/blog/absenteeism-workplace-statistics
Chronic Absenteeism Definitions to Remember:
Employee absences fall within two broad categories:
- “Innocent”: Absences related to legitimate medical and/or personal issues and are out of the employee’s control
- “Culpable”: Absences that occur without genuine cause and are within the employee’s control
What about Statutory Interplay (laws and regulations that impact absenteeism)?
*These regulations and statutory interplay are specific to New York State, review your local and state laws and regulations, to ensure compliance, while ensuring a thorough understanding of the regulations prior to writing and enforcing attendance policies.
Thoughts on Chronic Absenteeism:
- Design, implement and communicate a legally compliant and effective attendance policy.
- Ensure your managers, supervisors and the rest of the organization is consistently enforcing the attendance policy. Questions to consider:
- Are call-in procedures being followed? Are we allowing text messages, Facebook messages, emails, etc.?
- Are we tracking call-ins?
- Are documentation procedures being followed?
- What about the aforementioned protected leave interplay? Have we checked on this?
- Track attendance and review metrics on a regular basis. We reviewed attendance metrics monthly as part of the Key Performance Indicators (KPI’s) at past organizations, during monthly operation review meetings.
- Conduct necessary follow-up when vague absence explanations that are being offered. Ask for new FMLA paperwork or ADA paperwork. Follow-up, but follow-up consistently. Accountability from the organization and employees is necessary.
- Recognize and reward for good attendance records. Ensure this is spelled out in the policy and implemented consistently throughout the organization.
- What about pattern absenteeism?
- Training and communication on the policy and handbook language?
- Rolling 12-month calendar?
These are just a few thoughts, definitions and recommendations on chronic absenteeism and attendance policies for all organizations. I have written many of these policies for organizations and implemented attendance tracking metrics. I’m happy to work with any organization in reviewing, revising, drafting, implementing and communicating attendance policies. Consistency is the key to a successful attendance policy. Ensure you review laws and regulations at the local, state and federal level prior to finalizing the attendance policy.
Example Attendance Policy (Review Local & State Considerations)
Objective
The purpose of this policy is to set forth for the Organization policy and procedures for handling employee absences and tardiness to promote the efficient operation of the company and minimize unscheduled absences.
Policy
Punctual and regular attendance is an essential responsibility of each employee at the Organization. Employees are expected to report to work as scheduled, on time and prepared to start working. Employees are also expected to remain at work for their entire work schedule. Late arrival, early departure or other absences from scheduled hours are disruptive and must be avoided.
This policy does not apply to absences covered by the Family and Medical Leave Act (FMLA) or leave provided as a reasonable accommodation under the Americans with Disabilities Act (ADA), New York State Paid Family Leave (PFL), New York State Paid Sick Leave (PSL), Workers Compensation, Paid COVID-19 Sick Leave (as applicable), Pregnancy Leave (PDA & PWFA), Religious Holidays, Jury Duty, Time Off to Vote, Bereavement Leave and any other protected leave as defined at the local, state, and federal level. These exceptions are described in separate policies.
Absence
“Absence” is defined as the failure of an employee to report for work when he or she is scheduled to work. The two types of absences are defined below:
Excused absence occurs when all the following conditions are met:
- The employee provides to his or her supervisor sufficient notice advance of the absence.
- The absence request is approved by the Human Resources Department or Supervisor.
- Unexcused absence occurs when any of the above conditions are not met. If it is necessary for an employee to be absent or late for work because of an illness or an emergency, the employee must notify his or her supervisor no later than the employee’s scheduled starting time on that same day. If the employee is unable to call, he or she must have someone make the call.
An unexcused absence counts as one occurrence for the purposes of discipline under this policy.
Employees with three or more consecutive days of excused absences because of illness or injury must give the Organization proof of physician’s care and a fitness for duty release prior to returning to work.
Employees must take earned PTO and/or PSL for every absence unless otherwise allowed by company policy (e.g., leave of absence, FMLA, bereavement, jury duty) if paid leave is available.
Call-In Procedure: Employees are expected to call in, text or email prior to any scheduled shift as soon as possible. Sick, Personal, Leave, PTO, etc. must be approved prior to using any leave. Approval must be submitted to the President. If you plan to take vacation time 5-10 days, please schedule 2-weeks in advance. Call-in includes intermittent FMLA, PFL leave, sick leave, etc. reserves the right to deny any leave if standards are not followed, employees not following procedures will be disciplined up to and including dismissal.
Tardiness and Early Departures
Employees are expected to report to work and return from scheduled breaks on time. If employees cannot report to work as scheduled, they must notify their supervisor no later than their regular starting time. This notification does not excuse the tardiness but simply notifies the supervisor that a schedule change may be necessary.
Employees who must leave work before the end of their scheduled shift must notify a supervisor immediately.
Tardiness and early departures are each one-half an occurrence for the purpose of discipline under this policy.
Chronic Absence or Tardiness
Employees receiving corrective action under this policy are expected to improve their attendance and punctuality. Failure to improve and sustain improvement may result in the employee’s receiving additional correction, up to and including termination.
Pattern Absenteeism
Is defined as late arrivals or missing scheduled days during a workweek, (showing up late on Monday morning or calling in sick on Monday).
Disciplinary Action
Excessive absenteeism is defined as two or more occurrences of unexcused absence in a 30-day period and will result in disciplinary action. Eight occurrences of unexcused absence in a 12-month period are considered grounds for dismissal.
Job Abandonment
Any employee who fails to report to work for a period of three days or more without notifying his or her supervisor will be considered to have (AWOL) abandoned the job and voluntarily resigned from the employment relationship.
Attendance Point System for Nonexempt Employees
Attendance and Punctuality
An unauthorized absence occurs when the employee’s supervisor/department has not been properly notified that an employee will be late or absent. Points will be assessed for unauthorized absences, tardiness or late arrivals as described below.
Absent – missing one or more consecutive scheduled workdays for a single reason or
arriving more than two hours after the scheduled starting time.
Tardy – arriving up to 15 minutes after the scheduled starting time.
Late – arriving between 15 minutes and two hours after the scheduled starting time.
| Absence | Points | Explanation |
| 1-14 minutes | 1 | Tardy |
| 15 minutes-2 hours | 3 | Late |
| More than 2 hours | 5 | Unauthorized absence |
Disciplinary Action
Employees will be subject to disciplinary action when the total points accumulated from unauthorized absences and tardiness reach the following levels during any rolling 12-month period.
| Points | Corrective Action |
| 10 | Verbal warning |
| 15 | Written warning |
| 20 | Termination |
Perfect Attendance Objective
The Organization values employees with perfect attendance and recognizes nonexempt employees semiannually for perfect attendance on January 1 and July 1.
Eligibility
To receive an attendance award, the employee must have been a full-time employee during the previous six-month period and have used no sick leave, taken no time off without pay, had no unscheduled late arrivals or early departures that were not made up within the same workweek, and had no unscheduled PTO (without advanced notice). Absences covered by the Family and Medical Leave Act (FMLA) or leave provided as a reasonable accommodation under the Americans with Disabilities Act (ADA), New York State Paid Family Leave (PFL), New York State Paid Sick Leave (PSL), Workers Compensation, Paid COVID-19 Sick Leave (as applicable), Pregnancy Leave (PDA & PWFA) are not counted.
Perfect Attendance Award
The perfect-attendance award is $100 cash. This cash award is considered taxable income to the employee but will be “grossed up” to cover taxes so that the actual amount the employee realizes is $100. It will be included in the employee’s paycheck the first regularly scheduled payday following January 1 and July 1.
[i] Bond Slides
BURR CONSULTING, LLC 