As employees return to the workforce from remote work and the ability to take a break and walk the dog whenever they want, many are demanding to increase flexible work schedules. As humans, we think primarily about what benefits us individually, but as HR managers you have to think broadly about the institution as a whole and how all the pieces, including attendance, fit together to create consistent policies that improve efficiencies that are not only fair but legally enforceable.

In assessing the potential of flexible attendance policies, it is important to assess the nature and type of work that is done in your organization. Some work, particularly work that cannot be done remotely, may require very specific start and stop times.

Good examples of this are in the health care setting, where if the nurse shows up late to their shift, the facility may not be in ratio for the care of its patients. If a lab tech is absent or late, critical labs for patients’ treatment may be delayed. Similar examples can be found in the manufacturing industry where every person needs to work together to create a product. Any position where everyone needs to start and stop together, work together as a whole, or where timing is critical such as patient care, is unlikely to be appropriate for general flexible work times.

Further, in certain circumstances, those who have the shift “before the flexible start time” may have to stay late until the nurse, lab tech, etc. gets there to cover patient and resident care, therefore creating an unfair situation for those employees as well as the potential for overtime.

Flexible work schedules and times may work appropriately for those people who work independently, may be able to work remotely or at off-hours, and are individually motivated to manage a flexible schedule. Any flexible policies need to take into consideration requirements about being on time for scheduled meetings, regular check-ins, and participation, as well as assessing if commute time would apply when a remote worker needs to meet with others at the office. Policies can be structured under Iowa law to treat traveling to and from the office as commute time and therefore non-compensated.

Why should I care about an attendance policy?

There are several reasons to focus on attendance policies -- maintaining a consistent work environment, knowing when your employees are working, and ensuring your teams can function efficiently and consistently.

Notably, an attendance policy is important when considering whether employees who are terminated for failing to be at work would be compensated by Iowa Work Force Development through the job service program. Traditionally, an employee might disqualify themselves from receiving job service benefits if there is a written attendance policy, that attendance policy is consistently enforced by the company, and the employee was warned that further attendance violations will result in termination of employment. Open-ended and fluid policies are more likely to result in the employee qualifying for job service benefits than specific policies.

Also note that under Iowa law, employees who are no call no show for a period of three or more days are typically considered to have voluntarily quit and are disqualified for benefits. You may terminate an employee on a single instance of no call no show, but benefits are likely to be paid.

Can I have some flexible and some specific start times?

Yes, you can craft your attendance policies to relate to individual departments or groups. Note that there is significantly more complexity in managing multitiered attendance policies. Typically, this should not be done on an individualized basis, absent ADA/FMLA issues, to avoid claims of favoritism or simply bookkeeping chaos. But for employee categories as a whole, it is possible to have alternate attendance policies. This may be true for various management positions, sales, transcription, and similar roles in your company.

I have a couple of employees with small kids at home, can I just make it flexible for them?

It’s not appropriate to single out certain employees and allow them greater leeway under your existing attendance policy. You need to look at this in terms of categories of employees in order to avoid potential claims of discrimination or simply the PR burden of your employees thinking you play favorites.

While not having children is not typically considered to be a protected category, it could lead to a discrimination claim, for example, age discrimination. If the employee has ADA/ADAAA accommodation issues or intermittent FMLA, this results in a different circumstance. Any attendance policy should consider things like FMLA.

I don’t like the point system. It feels harsh.

Having a point system does not work for every company, it depends on your culture. However, when you define absenteeism consistently, point systems do have the benefit of being specific and clear. Point systems help your employees to understand what your expectations are or as an employer, avoid the appearance of favoritism, and are neutral on the surface. However, you do have to apply them consistently within your department and across your company as a whole while taking into consideration things like ADA/ADAAA.

Can I skip the paperwork?

It can be difficult depending on the size of the department that you manage, to maintain clear and consistent reporting regarding attendance policies. However, like most things, doing it right has real value when you have issues or a problem employee. A clearly written, published, communicated, and enforced attendance policy can provide significant liability benefits for claims of wrongful termination, discrimination, or in the job service arena.

The Big Picture

All employers should assess what type of attendance policy would best work for them and then communicate expectations and guidelines clearly to all employees. This has the benefit of providing clear guidance as well as consistency enforcement which can minimize liability risk in a variety of ways.

Attendance policies that are unworkable or that you do not follow are likely to be a detriment. All policies should take into account the nature of your work, your workforce, and your actual expectations. For attendance policies, remember to consider:

• Requirements about being on time for scheduled meetings, regular check-ins, and participation
• If commute time applies when a remote worker needs to meet with others at the office
• ADA/ADAAA and FMLA
• Communication and enforcement