Jacqueline Prats offered insight on the risks and considerations for employers instituting perfect attendance policies as the COVID-19 pandemic subsides in a May 21, 2021 article for Society of Human Resource Management (SHRM).
“Perfect attendance policies can be an important tool for managing employee absenteeism and morale,” Prats said. “However, employers should keep in mind that enforcing a perfect attendance policy against an employee who properly takes leave, including FMLA leave, because of COVID-19 can increase the employer’s risk of a legal claim.”
Further, perfect attendance policies could encourage employees to come to work even when they have COVID-19 symptoms, posing danger to the rest of the workforce. “Employers may wish to base their decision to reinstate their perfect attendance policies on when health authorities determine that the pandemic is over, or when the risk of community transmission of COVID-19 has decreased,” Prats said.
These policies must always comply with employment law related to leave, such as FMLA. “If an employer enforces a perfect attendance policy against an employee who properly takes FMLA leave, it could result in depriving the employee of a benefit to which he or she would otherwise have been entitled,” she said. “This deprivation could result in liability for the employer.”
While Families First Coronavirus Response Act (FFCRA) leave is no longer mandatory under the American Rescue Plan Act, employers offering FFCRA leave must do so within certain constraints. For example, the FFCRA prohibits employers from discriminating in favor of highly compensated, full-time employees or on the basis of employee tenure. Enforcing a perfect attendance policy against an employee who uses FFCRA leave could invite claims of retaliation or discrimination, Prats said.
Noting these federal laws as well as state and local laws that could come into play, Prats added “Employers may wish to include carve-outs I their perfect attendance policies for absences that are protected by law.”
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