Employers Should Review Attendance Policies / Bonuses When Re-Opening From COVID-19 Closures

For time-sensitive industries like manufacturing and logistics, employees’ attendance can make or break a deadline. For example: if there aren’t enough people to pick and pack product to load a delivery truck, the shipment will be delayed or cancelled.

However, in the COVID-19 economy as employers slowly re-open their workplaces, attendance and sick policies  / bonuses need to be reviewed to ensure the safety of all employees, present at work or absent, as well as the general public.

For example: when one of several workplaces owned by the same employer came under greater scrutiny due to the high number of COVID-19 infections; aside from the issues with adequate protective personal equipment (PPE) such as face masks and barriers between each employee, the employer’s “Responsibility Bonus” came to light: employees who worked from April 1st – May 1st with no absences would receive a $500 bonus. (This is also allegedly a culture where supervisors discourage employees from calling in sick to ensure proper staffing.)

In response to the criticism, lawsuits and publicity thereof, the employer updated the rules of their Responsibility Bonus to reward employees for calling out sick or coming to work.  The U.S. Department of Labor also weighed in, issuing guidance to meat-packing plants that workers must be screened before working and stand at least 6 feet apart.

I’ve advised clients to avoid attendance bonuses for many years – not just on the principal that sick employees should not report to work – but also Federal DOL’s very clear guidance that employees who call in sick must also be eligible to receive an attendance bonus:

Q) Can my FMLA leave be counted against me for my bonus?

Under the regulations, an employer may deny a bonus that is based upon achieving a goal, such as hours worked, products sold or perfect attendance, to an employee who takes FMLA leave (and thus does not achieve the goal) as long as it treats employees taking FMLA leave the same as employees taking non-FMLA leave. For example, if an employer does not deny a perfect attendance bonus to employees using vacation leave, the employer may not deny the bonus to an employee who used vacation leave for a FMLA-qualifying reason.

Example:

Sasha uses 10 days of FMLA leave during the quarter for surgery. Sasha substitutes paid vacation leave for her entire FMLA absence. Under Sasha’s employer’s quarterly attendance bonus policy, employees who use vacation leave are not disqualified from the bonus but employees who take unpaid leave are disqualified. Sasha’s employer must treat her the same way it would treat an employee using vacation leave for a non-FMLA reason and give Sasha the attendance bonus.

As employers plan to re-open their workplaces, ensure that your policies, PPE and practices clearly reflect CDC COVID-19 safety guidance, to best protect your employees and the general public alike.