How to Enforce Attendance Policies despite Sick-Leave Laws

By Keyes, Judith Droz | HRMagazine, September 2016 | Go to article overview

How to Enforce Attendance Policies despite Sick-Leave Laws


Keyes, Judith Droz, HRMagazine


When California's new sickleave law went into effect last year, many employers viewed it with a healthy skepticism. The low accrual rate and tight usage limits permitted under the law, formally dubbed the Healthy Workplaces, Healthy Families Act, drew criticism for being draconian and cumbersome, particularly from national employers that prefer a one-size-fits-all approach to leave.

Moreover, since a number of companies already provided more leave than the minimum required under the new law, many opted to keep their current policies in place; others made only minor revisions.

Unfortunately, however, making those well-intentioned and seemingly straightforward choices can bring an unintended consequence: the inability to hold employees accountable for the excessive use or perceived abuse of their sick-leave or paid-time-off (PTO) entitlement.

The good news is, with a bit of planning, HR professionals in California can work within the constraints of the legislation to craft policies that allow a company to be generous without exposing it to unnecessary risk.

Shifting Legislative Landscape

HR professionals and managers commonly counsel, discipline and sometimes even terminate employees who miss excessive amounts of work time. In the past, many of them operated under so-called no-fault policies, which regarded the reason for the absences as irrelevant.

However, beginning with the Americans with Disabilities Act in 1990 and the Family and Medical Leave Act (FMLA) in 1993-both of which offered protections for absences related to disabilities or dependent care-employers became somewhat constrained in their ability to reconcile their attendance policies with their performance review practices. California companies became further limited by various state laws such as the California Family Rights Act (CFRA) and the "kin care" statute, which allows the use of sick leave to care for a sick child, parent, spouse or partner. These employers-and their lawyers-eventually came to accept that they must not count legally protected absences, including those covered by FMLA or CFRA intermittent leave and those that accommodate a disability, against an employee's performance record.

Against that backdrop came the new sick-leave law in 2015, which gives California employees the right to accrue and take paid sick leave for a variety of reasons, including a family member's illness or need for preventive care. Under this legislation, employers must provide almost all workers with a paid-sick-leave program that meets certain minimum standards. Although the law provides for a variety of methods for awarding sick leave, the most straightforward is the accrual method: one hour of paid sick leave for every 30 hours an employee works.

'Upfront' Method

The California legislation allows employers to cap sick-leave accrual and usage-the former on a rolling basis at either 48 hours or six days per year (whichever is greater) and the latter at 24 hours or three days per year (whichever is greater). The usage cap gives employers the option of complying with the law by simply awarding employees 24 hours or three days of sick leave at the beginning of each year instead of having them accrue it. This is known as the "upfront" method.

Note, however, that employees in San Francisco, Oakland, Emeryville and Santa Monica are covered by local ordinances that have higher accrual caps and do not permit usage caps-so employers' options in those cities are more limited and challenging.

Risk of Retaliation Claims

A fundamental mandate of the new law is that employees cannot face retaliation-in the form of discipline, negative performance evaluations, or denial of any benefit or entitlement to which they would otherwise have access-as a consequence of using the time off afforded to them by the law. …

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