Mcle Self-study: the Intersection of No-fault Attendance Policies and Leave Laws: Perils in Balancing Employee Rights With Employer Attendance Concerns

• Citation: Vol. 28 No. 2
• Publication year: 2014
• Author: By Carol Gillam

MCLE Self-Study: The Intersection of No-Fault Attendance Policies and Leave Laws: Perils in Balancing Employee Rights With Employer Attendance Concerns

By Carol Gillam

Carol Gillam practices plaintiff-side employment law and heads The Gillam Law Firm in Century City. She is an advisor to the Labor & Employment Law Section's Executive Committee.

No-Fault Attendance Policies: The Appeal to Employers

In recent years, more and more employers have adopted "no-fault" attendance policies, lumping together time off for illness with vacations and other needs. For many, it was a response to the onerous logistics of leave management, and the inherent tension between employer and employee over intrusion into privacy rights. Such intrusion is necessary when employers require employees to detail reasons for their absences, and supervisors or human resources staff are called on to evaluate those reasons. Are the absences to be excused or unexcused? If unexcused, then typically progressive discipline follows for excessive absenteeism.

As an example of a no-fault policy, an employer may allow an employee a total of 200 hours of leave each year, to be used as the employee sees fit. Employees are required to give at least twenty-four hours' notice (when possible) of the need for an absence, without having to specify the reason. Absences without notice may result in "points" applied for progressive discipline. Points are often tracked on a quarterly basis: three absences in a quarter result in a verbal warning, an additional two absences lead to a written warning, and two more absences to a final warning. Once the employee receives a final warning, then he or she may be in the "penalty box" for future quarters; that is, an additional two absences in any quarter of that year will result in termination. Employees who have solid attendance for a year are treated more leniently when employers assess points and dole out progressive discipline.

Underlying all attendance policies are the fundamental needs of employers to minimize lost productivity, meet delivery deadlines, and keep their clients, customers, and compliant employees satisfied. When employers respond to economic pressures by cutting staff, the need to ensure predictable attendance is even greater. The tension in the workplace increases as employees, already burdened, must bear the load for absent coworkers, and morale often plummets. Managers must adapt quickly to absences, reassigning tasks and juggling deadlines and priorities.

Many employers are suspicious of patterns of leave usage, such as the higher frequency of employees who call in sick on Monday and Friday. Moreover, some managers believe that some reasons for absence are more legitimate than others, and may consciously or unconsciously penalize employees whom they suspect of leave abuse. Conversely, they may excuse others whose leave use they find less objectionable, even when they have not been provided detailed reasons for absences. The net result is that employees may accuse such managers of favoritism, even where policies intended to preclude such claims are in place.

The superficial appeal of giving all employees a "bank" of leave to use as they wish is compelling. No longer are employees subject to grilling over the reasons for time off—taking off for a child's ball game or parent-teacher conference, day-tripping to outlets for a shopping spree, and attending medical appointments are treated equally by the employer. And allowing employees to take a "mental health" day, when they deem it needed, may well result in a happier, less stressed workforce.

NUMEROUS LAWS REQUIRE CARVE-OUTS FROM NO-FAULT POLICIES

Although they may appear to be a panacea to some, no-fault attendance policies are fraught with peril. This is particularly the case in relation to disability, medical, and family leaves, as well as other rights recently extended by California legislation. This article summarizes the state of the law in California regarding attendance policies—particularly no-fault attendance policies—as they apply to employees having protected characteristics or engaging in protected conduct.

Laws that implicate attendance policies include, but are not limited to: the California Family Rights Act,¹ the Family Medical Leave Act,² the Pregnancy Discrimination Leave Law,³ the workers' compensation law,⁴ the Fair Employment and Housing Act,⁵ the Americans with Disabilities Act,⁶ those providing leave protections for domestic violence, sexual assault and stalking victims,⁷ and the Uniformed Services Employment and Reemployment Rights Act.⁸

California Family Rights Act and Family Medical Leave Act

The California Family Rights Act (CFRA) and the federal Family Medical Leave Act (FMLA) are important leave laws that every employer's attendance policies must address. Basically, both laws require employers with fifty or more employees to provide qualified employees up to twelve workweeks of protected leave. The fifty employees must work within a seventy-five mile radius of the workplace location of the employee requesting leave. To qualify, an employee must have worked at the job for at least a year and must have worked 1,250 hours or more during the prior twelve months.

Leave under the CFRA and FMLA must be for a "serious health condition." The two laws share the same definition of serious health condition, except that the CFRA carves out pregnancy, childbirth, and related conditions, which are covered under a separate law.¹⁰ The serious health condition may be that of the employee, or the employee's covered relations (child, spouse, domestic partner, or parent). CFRA leave may also be used for the birth of a child, or the adoption or placement of a child for foster care. Importantly, the leave rights under California's Pregnancy Disability Leave Law are in addition to those under the CFRA.¹¹

Employees related to injured servicemembers and veterans can take leave to care for them for up to twenty-six weeks, less any other qualifying leave used. The leave is available to spouses, children, parents, or "next of kin,"¹² and applies to caring for veterans who were in the Armed Forces within the previous five years.¹³

Pregnancy Disability Leave Law (PDLL)

A woman is entitled to take up to four months of leave under California's Pregnancy Disability Leave Law (PDLL).¹⁴ It is a violation of the PDLL for an employer to refuse to allow an employee disabled by pregnancy, childbirth, or a related medical condition to take the leave she needs.¹⁵ It is also a violation for the employer to interfere with, restrain, or deny the exercise or attempted exercise of the employee's rights under this law.¹⁶ The statute makes clear that the employee retains her right to be free from discrimination on the basis of sex, pregnancy, childbirth, or a related medical condition under all other applicabable statutes, including Cal. Gov't Code § 12940(a) (the FEHA provision prohibiting sex discrimination).¹⁷ Regulations also clarify the pregnant employee's rights to both pregnancy disability leave and CFRA leave.¹⁸

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