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The Difficult Issue of “No Call, No Show” Employee Absences Bruce E. Loren, Esq. and Michael G. St. Jacques, Esq. | Dec 09 2018

Employers often encounter “no call, no show” scenarios when an employee fails to show up to work without giving any notification. While disruptive, employees who do not give notice before missing work are protected under the ADA and FMLA. Employers should be cautious before disciplining or terminating “no call, no show” employees without gathering some additional information. Savvy employers will plan ahead to protect their business from unreliable players.

Your Company Needs a “No Show, No Call” Policy

Every employer should institute and follow a written “no call, no show” policy, which is typically referred to as an “Absentee and Punctuality” policy. The policy should explain: (a) the purpose of the policy; (b) the rules that every employee must follow; and (c) the consequences for failing to follow the rules by missing work without providing the notice required under the company policy. When consistently enforced, the policy offers the employer significant protection from violating an employee’s rights under the FMLA or ADA.

Blanket termination policies where any “no call, no show” incident results in termination are not always sufficient to protect an employer from such claims. The FMLA requires that: “when the need for leave is not foreseeable, an employee must comply with the employer's usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” While a blanket policy is sufficient to terminate an employee without an ADA or FMLA condition, employers should have a policy that protects them from inappropriately discipling a covered employee.

Things to Include in an Absence and Punctuality Policy

Explain “Why” the Policy Matters

First, while it seems obvious to employers, the policy should explain why it is so important to provide notice if an employee cannot make it to work. A good policy will explain that the employer and other employees rely upon one another and work as a team. When a member of the team does not provide notice the employer, the employer does not have a chance to find a replacement, the absence increases the burden on others and, when repeated, will affect the service or production level of the business. Some employees may not understand their relevance without a short explanation.

Explain the Policy Rules

Next, explain the rules. Standard policies often provide for termination after three consecutive days of absence without notice. What is reasonable will depend on your industry and the nature of the position in question. The policy might read something like this:

You are a valued member of our team and play a vital role in the success of our company and continued good name. We rely on you. Poor attendance and excessive tardiness are disruptive and can cause a hardship to the Company and your fellow employees. To maintain a safe and productive work environment, the Company expects you to be reliable and punctual in reporting for scheduled work. In the rare instance when you cannot avoid being late to work or are unable to work as scheduled, you should notify your supervisor as soon as possible in advance of the anticipated tardiness or absence. In most cases, this should be no later than within the first hour of your start time. Employees who fail to show up for work or call into work for three consecutive days will be deemed to have voluntarily quit as of the first day of the absence. Absenteeism and tardiness place a burden on other employees and the Company. Please make every effort to maintain a strong attendance record.

Enforce the Policy

The important part is to enforce whatever policy you have consistently and fairly to avoid the impression of discrimination. Fair enforcement however does not mean rigid. Application of the policy must be approached on a “case by case” basis depending on each employee’s situation. Consequences can be dependent upon whether the employee eventually returns to work.

For example, an employee who misses work without notice can be considered to have voluntarily abandoned their job and will be terminated. However, if the employee is missing for “X” number of days, but then returns to work with an adequate “explanation,” the employer can provide for suspensions or written warnings. This flexibility is important because there are certainly reasonable situations which might prevent an employee from showing up to work or providing notice, such as medical emergencies.

Minimum Procedures for Policy Administration

Is the employee okay? Reach out to check on the well-being of the absent employee. Document attempts to contact employee are encouraged. Best practices recommend using multiple communication methods such as text, phone and email.

Does the employee have an accommodation? Check the employee file to see if there are previous ADA or FMLA accommodations.

Did you communicate the termination? Always communicate any termination with the employee. Mail a termination letter to the last known address, including the company policy and the attempts to contact the employee.

Did you pay the terminated employee? Do not forget to mail the employee their last paycheck.

Remember, employees who are protected under the ADA or FMLA, but violate the company “no show” policy, are still subject to termination. Ask your counsel to identify whether your business has special criteria that should be addressed in the policy and cover any other related issues to protect the company.

Bruce Loren, Esq. and Michael St. Jacques, Esq. of the Loren & Kean Law Firm are based in Palm Beach Gardens and Fort Lauderdale, Florida, and devote their practices to construction law. Both Mr. Loren and Mr. St. Jacques have achieved the title of “Certified in Construction Law” by the Florida Bar, exemplifying the Bar’s recognition of this expertise. The firm’s construction clients include owners/developers, general contractors, specialty contractors in every trade, suppliers and professional architects and engineers. Mr. Loren and Mr. St. Jacques can be reached at bloren@lorenkeanlaw.com and mstjacques@lorenkeanlaw.com or by phone at 561-615-5701.