Is It Poor Attendance or Protected Leave

Is It Poor Attendance or Protected Leave?

A common, but often frustrating dilemma for HR professionals and managers occurs when an employee is experiencing attendance issues for a variety of reasons. For example, one day your employee missed work due to car trouble, on another occasion they were late because they were not feeling well, and yet another time they missed work due to a vague personal emergency.

Managers must often navigate through muddy attendance waters and be careful not to take action against an employee based on a legally protected leave. One common mistake managers make is lumping all absences together and using that as a reason to discipline an employee for "poor attendance," without taking each absence on a case-by-case basis to determine protected status.

Details and Documentation

It is critical that managers determine the reason for each absence and then document it in the employee's personnel file. If the employee provides a vague reason such as a "personal emergency," you may inform them that you need additional details to determine what leaves of absence may apply. If the employee refuses to provide details, you may advise them that the absence could count against their attendance without more information.

However, in California, an employer should never ask an employee for their confidential medical information, such as diagnostic information. Employers may generally request a doctor's note or medical certification to substantiate that the reason they were out was medically related, only after an employee has exhausted their mandatory sick time.

Determining if Leave is Protected

The next step is determining whether the leave time is protected and/or whether the employee violated your attendance policies. If the absence is protected, it should not count against attendance, nor should the employee face disciplinary action for it.

In addition to mandatory paid sick leave, there are over twenty mandatory leaves that may apply in California. Two of the most familiar are the California Family Rights Act (CFRA) and the federal Family and Medical Leave Act (FMLA), which allow qualifying employees to miss up to 12 weeks of work in a 12-month period, either continuously or intermittently, for covered reasons.

Need a list and descriptions of mandatory leaves in California? CEA members may access our comprehensive California Leave Laws Guide on our HR Forms Page.