Firing Someone for Excessive Absenteeism? Read This First!

JODI MATHY
HNI Senior Claims Consultant

I had a very interesting client consultation recently regarding an unemployment claim. The client was responding to a request from the Wisconsin Department of Workforce Development, which was asking for additional support of a termination because of excessive absenteeism and tardiness. In investigating this claim, I learned interesting details about a special law from 2006 that specifically addresses this type of discharge.

What Employers Need to Know About Absenteeism

In Wisconsin (and this may be different in other states; check with your respective government agency for details), to deny unemployment benefits to an individual for discharge related to absenteeism and tardiness, the following conditions must be met:

• The discharge must be for unacceptable attendance

-and-

• The employee must have been absent at least five times without notice in the 12 months before the date of the discharge

-or-

• The employee must have been tardy at least six times without notice in the 12 months before the date of discharge

So, no matter what, the termination must be for unacceptable attendance. After that baseline is set, the employee must either meet the absence qualification OR the tardiness qualification (both listed above).

The big question is, How does the DWD determine whether these conditions are met?

The Key is An Attendance Policy

The employer must have an attendance policy, and it must specify what it means to be tardy and what it means to be absent. The attendance policy also must explain how employees should provide notice of an absence or tardiness. The policy also must state that the consequence for not following the rules is termination.

Employers must provide this policy in writing to employees and provide written proof that employees received it. And employers must apply the attendance rules consistently. In addition, employers must give an employee at least one warning specifically for failing to give notification of absences or tardiness in the 12 months before the date of discharge.

How Will This Real-Life Case Turn Out?

In my opinion, the DWD's rules about termination for absenteeism are pretty stringent and not at all what I expected. My client had an employee who was calling in for various reasons frequently and not completing full days of work. The employee was warned about his attendance both verbally and in writing prior to the date of discharge. He was told that if he didn’t improve his attendance that it could lead to termination. However, he always called in prior to the absence. Dates of violations were recorded, but the time of day that he called in was not. The employer had an employee handbook, which the employee acknowledged in writing that he had received, but it did not contain a specific attendance policy.

The determination for unemployment benefits still is pending, and the employer has provided what it can to the DWD. Which way do you think this will go?