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“No-Fault” Attendance Policies: How Do They Work?

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Many companies have attempted to address attendance issues by implementing so-called “no-fault” attendance policies. These policies are meant to solve problems relating to attendance or tardiness by setting hard and fast rules about missing work without consideration as to the cause. Employees who run afoul of the policy, even unwittingly, can find themselves punished or terminated. Continue reading for a discussion of no-fault attendance policies and how they interact with California labor law. Call an Orange County labor law attorney for trusted advice and representation with wage & hour disputes or other labor law concerns.

What is a No-Fault Attendance Policy?

No-fault attendance policies work by assigning points to workers for each missed workday. Much like points on your DMV record, the policies allow for discipline or even termination whenever an employee accrues enough points within the relevant period. The policy is “no-fault” because the points accrue for all absences, regardless of the reason for the absence. Each company’s policy will dictate how points accrue and how many points will trigger a reprimand or other consequence.

Are No-Fault Attendance Policies Legal?

Companies that implement these policies claim that they are necessary to address problems including chronic absenteeism, tardiness, or leaving early. It’s not clear, however, that these policies are entirely permissible under California or federal law.

No-fault attendance policies may become problematic when they affect workers’ rights to take protected leave. Federal laws such as the Family and Medical Leave Act (FMLA) and the Americans With Disabilities Act (ADA) guarantee workers the right to take protected leave under certain circumstances, such as to recover from a medical issue or to help an injured family member. Federal law prohibits employers from retaliating against employees for taking protected leave. Arguably, assigning points to a worker’s record for taking FMLA or ADA leave is a form of punishment, especially if it can result in discipline or termination down the line. If all absences are treated the same, then protected leave is punished just like unexcused absences, which may violate federal labor law.

Likewise, California state and local laws protect workers who take leave for certain purposes. California’s paid sick leave laws and local sick leave laws guarantee workers the right to take sick days that have accrued based on the number of hours or days an employee has already worked. California law also protects medical leave, disability leave, pregnancy leave, workers’ comp leave, and other forms of leave. No-fault policies that treat these types of protected leave the same as any other missed day at work, potentially resulting in an adverse employment consequence, might violate California law.

Employers who wish to implement a no-fault attendance policy must make sure that they do so within the bounds of the law. Legally protected leave should not count against an employee, meaning that those days should not add to the worker’s point total. If the policy carves out protected leave and only adds points for, for example, sick days beyond those accrued or unexcused absences, then the employer should be able to protect themselves against liability. Talk to a labor law attorney about your attendance policy to ensure that it complies with federal, state, and local law.

If you are an employee with overtime or other employee rights concerns in Orange, Riverside, San Bernardino, Los Angeles, or San Diego counties, or a California employer dealing with employee rights allegations, wage & hour issues, employee contract disputes, or other employment law issues, contact a proficient and professional California employment law attorney at Coast Employment Law at 714-551-9930 for a free consultation.

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