Do you have an employee who is constantly calling out “sick” or taking excessive amounts of time off? While many employee absences are legitimate, recurring unscheduled absenteeism can really disrupt a business – especially if the employee is taking paid time off.
Your first instinct might be to discipline the employee, accuse them of taking advantage of the company, or even threaten to fire them. But if their reason for missing work qualifies as a legally protected absence, you could land yourself in hot water.
Tricia Meyer, founder and managing attorney at Meyer Law, noted that it’s important for employers to understand federal or state laws regarding employee leave so they aren’t creating illegal policies or making unfair demands of their workers. Learn the ins and outs of creating a smart time-off policy and handling employee absences.
Paid time off, otherwise referred to as PTO, is exactly what it sounds like: It is an employee benefit in which the employer pays the employee for an allotted number of days off of work each year. Employers can choose among a variety of different paid time-off options like federal holidays, floating holidays, vacation days, sick leave, parental leave, bereavement leave, jury duty, and military leave. Employers also determine PTO policy guidelines, like who is eligible, how many days are available each year (set or unlimited), and how PTO accrues. The best PTO policy for your business will depend on your organizational and team needs.
It is worth noting that sick leave and PTO policies can slightly differ. Paid sick leave is a specific amount of time off that can be used for injury, illness, or related reasons, whereas a paid time off policy is an all-encompassing time off bundle that can include paid sick leave.
PTO is an employee benefit in which the employee is paid for days they are not at work.
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Whether you’re writing your first time-off policy or updating your existing one, our sources recommended including a few key things.
Create a comprehensive PTO policy that includes employee expectations, paid and unpaid leave options, accrual and rollover details, payment upon termination policies, scheduling procedures and violation consequences.
There are currently no federal laws that require employers to offer paid time off, but that doesn’t necessarily mean you’re off the hook. Each state has its own PTO requirements that determine whether employers are obligated to have paid time off policies or not. This is why it is important to check with your state’s specific guidelines before drafting your time off policy.
Keep in mind, even if it isn’t legally required, it is usually a good idea to offer some type of PTO and paid leave policy. Offering your employees the flexibility to take much-needed days away from work can improve your overall workforce. For example, offering vacation pay can help you attract and retain top talent, and offering sick leave can help you keep a healthy workplace.
Although the federal government doesn’t require employees to offer PTO, some states have their own requirements.
As an employer, you have a legal obligation to treat employees fairly when it comes to your leave policies. Research federal laws like:
Additionally, familiarize yourself with your state’s workers’ compensation laws.
“You must make sure that you are not reprimanding or even denying the absence of an employee for any protected reason,” said Lizotte. “Also, make sure that you are treating each employee the same so that you do not end up with a discrimination or wrongful termination claim.”
It is always best to have an experienced attorney review your policies to make sure there’s no problematic language or rules.
“Employers should consult with professionals to ensure that they are complying with various federal and state laws with respect to their policy and implementing best practices,” said Meyer. “An employer’s policy should be clearly written and sent to all employees for their review/acknowledgment.”
Check federal and state laws and consult with a legal professional to create a compliant PTO policy.
Employee absences are more than just a compliance issue, and how you handle them affects company costs, profitability, culture, employee morale, and more, said Raj Narayanaswamy, co-founder and co-CEO of Replicon.
“The way you choose to comply with these absence requirements can have a far-reaching impact on more than just your legal department, so take the time to fully understand how time is being deployed in your company,” he said.
Lizotte noted that employers can easily track employees’ absences by either creating a process in their company in which they document absences regularly, such as with paper, or finding an electronic solution that allows them to easily enter employee absences as they occur.
“If the employer intends on scaling the company, I’d recommend using a third-party software product to track, as it is typically less administratively burdensome compared to tracking in a spreadsheet, is less likely to contain errors, and allows the employer to ensure compliance with state and federal laws more easily,” Meyer said.
Before you approach an employee about chronic absenteeism, it’s wise to conduct an internal audit to uncover the root of the issue, said Lizotte. Is your employee choosing to call out of work because they’re feeling stressed and pressured and need some time to decompress? Are they calling out because of a family situation (e.g., caring for children or aging parents)? Because of health-related behaviors of their own?
Next, Lizotte said to look at your company’s attitude toward unscheduled absenteeism. Do you tolerate it because everyone needs time off now and then? Do you feel it’s abused because you don’t know how to manage it differently? Or is it frowned upon, and the employees know it, but it still happens?
“By conducting this audit and answering these questions, you will be able to identify … [and] understand any absentee issues your company may have, and [then] implement a plan,” said Lizotte.
Before taking any disciplinary action against an employee, we advise consulting an HR professional and/or an attorney to make sure you’re staying legally compliant.
Use time and attendance software to track employee time off. If an employee is taking excessive time off, conduct an audit before approaching the employee.
Additional reporting by Sammi Caramela and Skye Schooley. Some source interviews were conducted for a previous version of this article.