Can Employers Enforce Attendance Policies During COVID-19 Emergency?
Many employers are finding employee scheduling a challenge as they struggle with unpredictable employee attendance during the COVID-19 emergency. Some employees who are able to work are choosing not to for a variety of reasons, from fear of being exposed to the virus, to frustration that some of their co-workers earn as much money on unemployment as they earn working. Employers may be hesitant to enforce their regular attendance policies for fear of running afoul of government orders and laws that grant protected leave to employees for certain COVID-19-related reasons. Employers should feel comfortable, however, advising employees who are not prohibited from working by a stay-at-home order or who do not have a protected COVID-19-related reason for missing work, that they are expected to be at work, on time.
Employers should consider publishing a modified attendance policy notifying employees that an absence for any of the following reasons is excused:
- they have tested positive for COVID-19;
- they have one of the principal symptoms of COVID-19;
- they have been advised by a healthcare provider to self-quarantine;
- they are caring for or have had close contact with someone who meets the criteria in (1), (2), or (3);
- they are actually needed and are caring for a child because the child’s school or childcare provider is unavailable; or
- a government order prohibits them from working outside of their home.
Furthermore, employers can request that employees provide the following information to support the reason for their absence:
- the date(s) and reason for leave;
- the employee’s statement that they are unable to work; and
- as applicable, the name of the advising healthcare provider, the name of their child’s school or child care provider, along with a statement that no other suitable person is available to care for the child, or the name of the governmental unit issuing the stay-at-home order.
Employers can advise employees to provide this information within the same time frame that they require employees to give notice of other types of absences.
A modified attendance policy should also include a statement that employees are expected to return to work when they meet the then-current CDC guidelines for ending home isolation or when they are no longer subject to a stay-at-home order. If an employee does not have an excused reason for their absence, or does not return to work when it is safe and lawful to do so, an employer can enforce its attendance policy and consider the absence unexcused. It is also important to notify employees that they should not fear retaliation because they exercise their right to protected leave or abide by a stay-at-home order.
To encourage employee attendance, employers can consider paying a premium to employees who report to their worksite, as scheduled. If an employer cannot afford to pay a premium, it could consider allowing these employees to earn additional paid-time-off to be used when more employees are available to work. Employers should also remind employees that they are not eligible for unemployment compensation if they do not come to work and do not have an excused reason for their absence. Employers can also amend their paid-time-off policies to suspend employee use of paid-time-off for reasons unrelated to COVID-19 or other protected reasons.
A caution to employers: be mindful that employees may be protected under the National Labor Relations Act to engage in certain concerted activity in protest of working conditions that they deem unsafe. If an employer receives notice of any such protected concerted activity, they should consult their labor counsel.