Absenteeism Explained
Understanding How Arbitrators View Attendance Issues
Absenteeism is a vexing problem for employers and unions alike. Discipline related to attendance is one of the most common issues that arbitrators face. There are so many attendance grievances! But if it’s so common, why hasn’t it been resolved? I’m going to try to make sense of the decision-making process when it comes to attendance discipline, but this may take more than one post!
First of all, arbitrators understand that employees have a few obligations under their collective bargaining agreement. Employees must:
go to work and do the job
follow their employer’s reasonable rules
not interfere with the employer’s ability to carry out their business
Attendance problems arise when the “go to work” part of the employee’s obligation is not being fulfilled. Unfortunately, it’s not quite as simple to hold someone to that maxim as it is to say it.
Many state and federal laws, as well as CBAs, have protections for certain kinds of absences. These protections are adopted in recognition of the fact that people’s lives are not solely about work. Employees may have sick leave, kin care, FMLA, PTO, personal days, comp time, vacation, union leave, education leave, jury duty, military leave, disability leave, or sabbatical time. Any of these may protect employees from being disciplined or removed from their job when they qualify to use the protection.
Employers often adopt rules or guidelines that govern usage of leave. Employers who want to see their attendance discipline upheld in arbitration will usually meet and confer with the union about such a policy, and in any case, will give frequent and ample notice to employees about the policy or guidelines.
Many policies distinguish between “excused” and “unexcused” leave. Excused leave might require a doctor’s note if it was an emergency or pre-clearance if it’s a planned leave. Arbitrators will look to the language of the CBA or the policy to determine whether the absences that are the subject of discipline qualified for protection or not.
Sometimes, an employee has excused or accrued leave but uses it in a manner the employer thinks abuses the system. For example, pattern absenteeism can be subject to discipline. Pattern absenteeism might happen when an employee take leave at the beginning or end of weekend or vacation, or takes off for holidays (which includes major sporting events) without pre-clearance. For example, an employee who had accrued enough sick leave but wasn’t qualified for intermittent FMLA leave who called in sick every Monday could still be disciplined under a pattern absenteeism theory.
Some employers will use auditing to identify high use employees - those people who work substantially fewer shifts that the average employee in the same position in the same facility. This happens in industries where employment is a little more sporadic. Let’s say an employee is expected to “mark up” or “peg in” for twenty shifts per month but only pegged in for ten shifts per month. This might not automatically create an attendance problem if there was no work, but if the other workers who pegged in for twenty shifts got an average of seventeen shifts per month, the outlier employee who only pegged in for ten and worked for seven could be subject to scrutiny.
And when I say “could be disciplined” or “could be subject to scrutiny,” I mean that a labor arbitrator would be more likely than not to uphold discipline in those cases supported by the evidence.
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Some employers adopt a “no-fault” or “points” attendance system that progressively disciplines employees based solely on the number of occurrences when an employee is absent. Leave that is protected by law (such as FMLA or workers comp leave) and vacation are not counted in the points system, but everything else is fair game. An employee can be disciplined if they have a certain number of absences in a specific time period, usually a “rolling period.” For example, if an employee can have twelve days off in a twelve month period and her oldest absence is thirteen months old, it would “roll off” and not be counted for the purposes of determining whether she has accumulated too many points. Some places say the points “wash out.” It means the same thing.
Under a no-fault system, the employer is obligated to do the same thing they are under any other attendance policy. They must administer the policy in a fair and equitable manner. They must give notice to employees of the consequences of failing to follow the policy. And they must make leave obtainable. In other words, people need to be able to take the leave they have accrued.
Unions, on the other hand, have an obligation to assist employees in understanding the different types of leave, and which ones offer legal protection. Unions should counsel their members about the impact of their absences. And unions should encourage members to use Employee Assistance Programs and correspond in a timely fashion with the employer. In a surprising number of cases, the employee stopped responding to letters, failed to update their address, or did not get the necessary documentation to take or extend leave.
This is a pretty high level summary of absenteeism, and I welcome questions about more specific issues. The more consistently and fairly an employer implements their policy, the fewer grievances the union will need to bring, leaving both parties free to spend their time on more useful endeavors. If you found this helpful, please share it with a colleague.
Going forward, I may be writing every other week, but you can always check out the Archive. If you have a question or idea for a column, please send me a message. See you in a couple of weeks!