Does Your Attendance Policy Violate California Law?

Many employers have attendance policies that assign an "occurrence" for unscheduled, unapproved absences.

Although employers generally have the discretion to implement attendance policies, such policies should be carefully created to avoid violating antidiscrimination and antiretaliation provisions in California paid-sick-leave and Kin Care laws

Recent guidance released by the Division of Labor Standards Enforcement (DLSE) state:

"An employer shall not deny an employee the right to use accrued sick days, discharge, threaten to discharge, demote, suspend, or in any manner discriminate against an employee for using accrued sick days, attempting to exercise the right to use accrued sick days, filing a complaint with the department or alleging a violation of this article, cooperating in an investigation or prosecution of an alleged violation of this article, or opposing any policy or practice or act that is prohibited by this article." (Lab. Code § 246.5, subd. (c)(1).)

Under the California Kin Care law, an employer attendance policy that states an absence that may lead to or result in discipline, discharge, demotion, or suspension violates the Kin Care Law if the absence was taken for one of the reasons in the law.

The agency concludes: "This means, in general terms, that if an employee has accrued sick days available, an employer may not deny the employee the right to use those accrued paid sick days, including the right to use paid sick leave for a partial day (e.g., to attend a doctor's appointment), and may not discipline the employee for doing so."

This does not mean that an employer may never discipline an employee for missing work. If the employee does not have any accrued or available sick leave, as in the case where the employee has used up all his or her available time under the employer's sick pay policy, the employer may give the employee an "occurrence" for the absence that otherwise violates the company's attendance policy.

This is so even if the absence would have counted as covered sick leave had the employee not exhausted his or her accrued time.

The paid sick leave law does not "protect" all time off taken by an employee for illness or related purposes; it "protects" only an employee's accrued and available paid sick leave as specified in the statute.

When only part of an absence is covered by accrued paid sick leave, the employer may assign an "occurrence" for the uncovered portion. For example, if an employee is absent for a full eight-hour day of work, but elects to use only four hours of his or her accrued paid sick leave, the employer would be allowed to discipline the employee for the half day of absence for which no paid sick leave was used.  Similarly, if the employee had a full day absence, but only had available four hours of accrued paid sick leave, the employer could discipline the employee for the half day absence under the employer's attendance policy.

Employers should carefully consider these issues when crafting an attendance policy that assigns adverse consequences for unapproved or excessive absences.

Lauren Sims, the author of this article, is the Director of Human Resources Consulting at eqHR Solutions.

eqHR Solutions provides professional, tactical and strategic, human resources support, ADP payroll product implementation/training and payroll processing services for businesses throughout Southern California.

When your business requires professional Human Resources or Payroll advice to navigate the ever-changing landscape of California and Federal Employment Laws & Regulations, contact us for a no obligation consultation.