Managing Absenteeism, Leaves, + Presenteeism While Considering Productivity and Culture

Managing Absenteeism, Leaves, + Presenteeism while Considering Productivity and Culture

PRESENTATION PREPARED SPECIALLY FOR CONNECTICUT BUSINESS & INDUSTRY ASSOCIATION

BRITT-MARIE K. COLE-JOHNSON ROBINSON & COLE LLP

MAY 11, 2018

Agenda

 Welcome and Introduction  Absenteeism  Impact of Absenteeism on Workplace  Unexcused v. Excused Absences  Paid v. Unpaid Absences  Managing Absenteeism  Leave & Accommodation  Legal Review  Managing Leave & Accommodation  Presenteeism  Managing Presenteeism  Special Issues  Questions and Answers

1 Absenteeism – Impact of Absenteeism On the Workplace

Attendance at work is critical to most businesses. Absences, especially those that occur regularly, can negatively impact the business and workplace in a variety of ways, including:

 Loss of productivity  Disruption to the workplace  Low morale  Conflict/resentment in the workplace  Lack of continuity in operations, provision of services, etc.  Cost money (administrative time, etc.)  Decrease quality of goods or services

Absenteeism – Impact of Absenteeism On the Workplace

 In 2015, the U.S. Department of Labor estimated that 3% of an employer's workforce was absent on any given day.  According to a 2014 Society of Human Resource Management/Kronos survey, paid absences cost employers between 20.9% and 22.1% of total payroll.

2 Absenteeism – Unexcused v. Excused Absence

 Employee absences may qualify as excused or unexcused absences  Typically, employers maintain policies that describe the circumstances under which an absence is considered excused versus unexcused, for example:  Prior approval by management  Providing appropriate notice  Whether the absence is due to an emergency  Among other distinctions

As managers, who do you believe should make this decision? Does the timing matter?

Absenteeism – Paid v. Unpaid Absence

 Employee absences may be paid or unpaid  Absences may be paid under an employer leave or paid time off program (e.g., sick leave, vacation) or an insurance program (e.g., short-term disability, workers’ compensation, etc.)

As managers, can/should you treat employees differently as it relates to determining whether absence/leave is paid or unpaid, depending on the person and the circumstances?

3 Absenteeism – Managing Absenteeism

 Maintain an attendance/absenteeism written policy that is consistent with business necessity and expectations  Communicate the attendance/absenteeism policy and expectations to employees  Be consistent and uniform in enforcing the policy  Maintain accurate and up-to-date records of all instances of absence and tardiness  Use a form that employees must complete regarding the general nature of the need for leave  If absenteeism/tardiness is an issue, consider issuing discipline or raising this issue in the employee’s performance review  Managers often avoid disciplining employees for absenteeism which can hurt employee morale and impact productivity  If there are trends in the workplace related to absenteeism, monitor them and consider addressing them proactively 7

Absenteeism – Managing Absenteeism

 John calls and says he can’t come to work. What can you ask him? What do you do?

 You notice that Samantha is consistently reporting to work late. Should you discipline her? Should you talk to her?

 What if Samantha is reporting to work late due to a medical reason? What do you do?

 Can you treat employees differently as it relates to absenteeism/attendance such as exempt and nonexempt employees?

4 Absenteeism – Managing Absenteeism

 Linda calls and says she has a personal issue and will be out for 3 weeks. She says she would rather not tell you about the issue. What do you do?

 Chris calls and says he is sick and cannot report to work. What can you ask him, if anything? What do you do?  Can you ask Chris what he means by “sick”?  Can you require him to provide a doctor’s note in order to return to work?  How do you find out whether he qualifies for leave such as FMLA or sick leave?

 Mary is out for 4 days and has not called you to check in. Do you call her? If so, can you ask when she will be able to return to work?

Leave & Accommodation – Legal Review  Leave may be required under local, state, and federal law.  Legally-mandated paid leave under CT law includes:  CT paid sick leave  Jury duty leave  Workers’ compensation  Legally-mandated unpaid leave under federal and CT Law includes:  Military leave  Pregnancy leave  Leave for Witnesses and Victims of Crime  Leave for Victims of Family Violence  Volunteer Firefighter and Ambulance Service Members  FMLA and CT FMLA  ADA  Other leave  Short term/long term disability

5 Leave & Accommodation – Legal Review – FMLA  Under the Family and Medical Leave Act (FMLA), eligible employees are entitled to up to 12 weeks in 12 months (federal, covering employers with 50 or more employees) and 16 weeks in 24 months (state, covering employers with 75 or more employees in CT) of unpaid leave for:  employee’s inability to work due to serious health condition.  birth/adoption/placement of child.  care for serious health condition of child, spouse, or parent.  Any qualifying exigency due to covered active military duty of employee’s spouse, son, daughter, or parent.  Donation of an organ and bone marrow (state only).

* An eligible employee may also take up to 26 workweeks of FMLA leave in a single 12-month period to care for a covered servicemember with a serious injury or illness if the employee is the spouse, son, daughter, parent, or next of kin of the servicemember (military caregiver leave).

Leave & Accommodation – Legal Review - ADA  The Americans with Disabilities Act (ADA) covers employers with 15 or more employees  Employers are prohibited from discriminating against individuals with disabilities  Employers must make reasonable accommodations for individuals with disabilities unless the accommodation would cause an undue hardship  Leave can be a reasonable accommodation. Therefore, managers should understand that covered employees may be entitled to leave as an accommodation even if the employee has used all of his/her sick time or FMLA leave.

6 Leave & Accommodation – Legal Review - ADA

 Reasonable Accommodations:  Reduced/changed hours  Job restructuring  Reassignment to a vacant position  Modified workplace policies, training materials  Modifying dress code, break policies, eating in the workplace, etc.  Modified workplace/working conditions/equipment/devices

 Not Reasonable Accommodations:  No duty to create a new job that does not exist.  No duty to provide personal use items such as eye glasses or hearing aids.  No duty to ensure employees take their medications (still must accommodate if they don’t).  No duty to lower quality or production standards or tolerate misconduct.  No duty to eliminate essential functions of the job.  No duty to give the reasonable accommodation the employee wants if several alternatives and one is less costly or burdensome than the other.

Leave & Accommodation – Legal Review – Workers’ Compensation

 Workers’ compensation is designed to assist employees injured on the job or with an occupational disease  No fault system  Benefits can include medical costs and wage replacement  Non-discrimination/non-retaliation  “Light duty”  Rights to reinstatement  Note: The corollary to workers’ compensation for non-work related injuries is short-term/temporary disability insurance

7 Leave & Accommodation – Legal Review – Intersection of all 3

 Think about leaves and disability-related issues broadly, rather than in a vacuum  A workers’ compensation leave can run concurrently with FMLA  An ADA reasonable accommodation request can result in an FMLA leave and vice versa  An employee returning from a workers’ compensation leave and requesting “light duty” likely has rights to a reasonable accommodation under the ADA  Remember – Employees cannot be retaliated against for taking/using FMLA, ADA, or workers’ compensation

Leave & Accommodation – Managing Leave & Accommodation

 Maintain written leave policies and ensure that they are communicated to employees  Ensure leave is designated properly, employee receives proper paperwork, and employee provides proper documentation. Managers should understand all of the leave and benefits programs offered so that they can ensure that employees are taking advantage of all available leaves/programs (e.g., an employee out on FMLA leave may also qualify under the employer’s short-term disability program).  Request medical information from the employee consistent with the relevant policy and applicable law

8 Leave & Accommodation – Managing Leave & Accommodation

 Communicate with employee during leave to the extent necessary to keep up-to-date on the employee’s status and return to work date  If an employee requires a reasonable accommodation, or requests to return to work with restrictions, engage in the interactive process with the employee to determine whether such accommodation can be provided  Treat all employees fairly and consistently

Leave & Accommodation – Managing Leave & Accommodation

 Mary, an avid birdwatcher, fell out of a tree over the weekend and broke her ankle. Could she be entitled to FMLA, ADA, or workers’ compensation leave or some other leave?

 Amber fell off a ladder while fixing a display case at work. She says she is fine. Could she be entitled to FMLA, ADA, or workers’ compensation leave or some other leave?

9 Leave & Accommodation – Managing Leave & Accommodation

 Juan was out on FMLA for back surgery. He has exhausted his FMLA leave and requested 2 additional weeks of leave. What should you do?

 Roy is returning from leave and has sent in a note stating that he must work in a low-stress environment. You read the note, decide there is no change that can be made in the workplace that would lower his stress, and notify him of the decision. Is that okay?

Presenteeism

What is “presenteeism”?

10 Presenteeism

 Presenteeism occurs when an employee is at work but because of illness or another medical condition, is not fully functioning (i.e., going to work sick)  It is not always apparent to employers since, unlike absenteeism, the employee is present in the workplace  According to a study by EHS Today, employees take an average of 4 days off per year for sick time but admitted to being unproductive an average of 57.5 days per year!  Bottom Line: It is generally thought that presenteeism costs employers more than absenteeism

Presenteeism – Managing Presenteeism  Identify presenteeism  What are the relevant triggers?  Is the employee reporting to work sick or is the employee just a slacker?  Determine whether a meeting with the employee is appropriate  Meet with the employee and communicate the issues/concerns. Be sure to ask if there are ways you can assist the employee.  Consider whether a reasonable accommodation, including leave, may be appropriate  You may observe the need for a reasonable accommodation even if one is not explicitly requested  Be consistent in identifying and managing presenteeism with employees

11 Presenteeism – Managing Presenteeism  Jennifer has been reporting to work for the last few weeks sneezing and coughing with watery eyes. You’ve seen a drop in her performance and you think it’s because of the discomfort that she may be in due to allergies or some other reason. What do you do?

 Tom has reported to work for 3 days and it appears that he is exhausted. You know his wife just gave birth to a new baby and you think he is probably tired due to lack of sleep related to the new baby; however, his performance has been poor for the last few days. What do you do?

Presenteeism – Managing Presenteeism

 Can you fire an employee for consistently reporting to work sick?

 Can you fire an employee for performance issues stemming from presenteeism?

 Can you send someone home that appears to be sick and tell them to “feel better and come in tomorrow”?

12 Special Issues

 Maintaining the confidentiality of medical information, separate from personnel files, and communicating such information only to individuals with a business need to know  Requiring medical documentation, certification, and doctor’s notes  Managing absenteeism, leave, and presenteeism for remote workers  Social media posts, emails, and texts that may call into question an employee’s need for an absence or leave  Ensuring both exempt and non-exempt employees are paid properly during absence or leave  Implementing processes for unexpected closures such as inclement weather  Disciplining employees who fail to follow proper procedures regarding attendance, absenteeism, or leave

Questions?

13 Thank You.

Britt-Marie K. Cole-Johnson, Esq. Partner, Robinson & Cole LLP Tel: 860-275-8279 [email protected]