Absenteeism Policy: What It Means for Employers

What it means in practice

An absenteeism policy (often called an attendance policy) is usually a section of the employee handbook. The EEOC observes that employers generally have attendance requirements and that many also provide paid leave as vacation or annual leave, personal days and sick days, while certain laws, such as the ADA and the Family and Medical Leave Act, may require employers to extend leave. This entry covers the written policy and the federal and state rules that limit it. For the broader practice of tracking, analyzing and reducing absences, see absence management.

Typical elements. Most written attendance policies cover the same building blocks. Definitions: what counts as an absence, a late arrival (tardy), an early departure and a no-call/no-show, and the difference between scheduled (approved in advance) and unscheduled absences. Reporting: who to call, by what time and by what method. FMLA rules recognize that an employer may require employees to call a designated number or a specific individual (29 CFR 825.303(c)) and may require written notice stating the reasons, expected duration and start of foreseeable leave (29 CFR 825.302(d)). Documentation: when a doctor's note or other proof is required. Counting: how absences add up, for example a limit on unplanned absences over a 12-month period. Consequences: the steps of disciplinary action tied to each threshold. Exceptions: which absences are not counted because a law protects them. That last element is where most of the legal limits below come in.

Point, occurrence and no-fault systems. Many policies assign an "occurrence" or points for each unscheduled absence or late call. California's Labor Commissioner describes these as policies under which employees "may be given an 'occurrence' or similar adverse personnel action" for an unscheduled absence or insufficient notice, and calls an occurrence a form of discipline. The EEOC describes "no fault" or maximum leave policies, including caps on unplanned absences, giving the example of a policy that permits no more than five unplanned absences in a 12-month period before progressive discipline or termination. The EEOC says employees with disabilities are not exempt from such policies as a general rule, but the policies may have to be modified as an accommodation. The FMLA regulations are more direct: FMLA leave cannot be counted under no-fault attendance policies (29 CFR 825.220(c)).

FMLA: interference and retaliation. Per DOL Fact Sheet #28 (revised March 2025), the Family and Medical Leave Act (FMLA) covers private employers with 50 or more employees in 20 or more workweeks in the current or previous calendar year, plus public agencies and schools. The regulations say interference includes not only refusing to authorize FMLA leave but also discouraging an employee from using it (29 CFR 825.220(b)), and employers cannot use FMLA leave as a negative factor in hiring, promotions or disciplinary actions (29 CFR 825.220(c)); see retaliation. On attendance bonuses: if a bonus is based on a goal such as perfect attendance and the employee missed it because of FMLA leave, it may be denied, unless employees on equivalent non-FMLA leave receive it. If an employee who used paid vacation for a non-FMLA purpose would still get the bonus, so must one who used paid vacation for an FMLA purpose (29 CFR 825.215(c)(2)).

FMLA: call-in and notice rules. The FMLA shapes an attendance policy's reporting rules rather than erasing them. For foreseeable leave, employees give at least 30 days of notice, or as soon as practicable; when the need arises less than 30 days ahead, notice the same or next business day should generally be practicable (29 CFR 825.302(a) and (b)). For unforeseeable leave, notice is due as soon as practicable, generally within the employer's usual notice rules, and a spouse or other responsible person may give it (29 CFR 825.303(a)). The employee need not mention the FMLA the first time, but calling in "sick" without more information is not enough, and the employer is expected to obtain more information informally (29 CFR 825.303(b)). An employee needing emergency treatment need not follow the call-in procedure until stabilized and able to use a phone; otherwise, if usual procedures are not followed and no unusual circumstances justify it, FMLA leave may be delayed or denied (29 CFR 825.303(c)). One example of unusual circumstances: no one answers the call-in number and the voice mailbox is full. A policy requiring earlier notice than the FMLA cannot be used to deny leave when the employee gave timely FMLA notice (29 CFR 825.302(d)).

FMLA: certification and partial days. An employer may require medical certification, which the employee generally must return within 15 calendar days; the employer must say in writing what is missing from an incomplete one and allow seven calendar days to cure it (29 CFR 825.305(b) and (c)). For intermittent leave, FMLA time is counted in an increment no greater than the smallest used for other leave, and never more than one hour. An employer may use a shorter increment when an employee arrives several minutes late and is put to work immediately, and may not charge FMLA leave for time spent working (29 CFR 825.205(a)).

ADA limits. The Americans with Disabilities Act (ADA) covers employers with 15 or more employees. The EEOC's guidance on employer-provided leave says employees with disabilities must get access to leave on the same basis as similarly situated employees, so a supervisor cannot demand a psychiatrist's note when the sick leave policy requires no documentation; but employers may have policies requiring all employees to provide a doctor's note. The EEOC says an employer may not penalize an employee for using leave as a reasonable accommodation, and may have to modify attendance policies, for example by allowing accrued or unpaid leave, adjusting arrival or departure times, or providing periodic breaks. But employers need not completely exempt an employee from attendance requirements or accept irregular, unreliable attendance, and generally do not have to accommodate repeated tardiness or absenteeism that occurs frequently, over an extended period and often without notice. Indefinite leave is an undue hardship.

Discipline and late accommodation requests. The EEOC says an employer may discipline, consistent with how it treats other employees, for attendance problems that occurred before an accommodation request. But if the infraction calls for something less than termination, such as a warning, and the employee then requests accommodation, the employer must consider the request. In the EEOC's example, an employee with diabetes receives a written warning for excessive absenteeism and then explains the absences were disability-related; the employer does not have to withdraw the warning but must grant the requested leave unless it would pose an undue hardship.

Pregnancy. The Pregnant Workers Fairness Act took effect June 27, 2023, and applies to employers with 15 or more employees. The EEOC lists leave for health care appointments, leave to recover from childbirth and a later start time among possible accommodations, and says employers may not punish or retaliate against an employee for requesting or using one. Documentation is limited: it is not reasonable to ask for it when the employer would not normally, so a policy requiring a provider's note only for absences of 3 or more days in a row cannot be used to demand one for a 1-day pregnancy-related absence. Once an employee has explained, for example, morning sickness that requires a later start, the employer cannot demand a new note each time the employee comes in later.

Military service and jury duty. Under USERRA, an employee must give the employer advance notice of military service, verbally or in writing and in no particular format, unless prevented by military necessity or it is impossible or unreasonable, but does not need the employer's permission (20 CFR 1002.85 to 1002.87). The employer may not require the employee to use accrued vacation during service (20 CFR 1002.153(b)), and may not deny retention or any benefit of employment because of service (20 CFR 1002.18). For federal jury service, the statute bars an employer from discharging, threatening, intimidating or coercing a permanent employee because of jury service or attendance in connection with it, with a civil penalty of up to $5,000 per violation as to each employee (28 U.S.C. 1875).

Pay deductions for exempt employees. An attendance policy that docks pay has to fit the salary basis rules for exempt employees. Under 29 CFR 541.602, an exempt employee generally receives the full salary for any week with any work. Deductions may be made for absences of one or more full days for personal reasons other than sickness or disability; for full-day sickness absences under a bona fide plan, policy or practice of salary replacement; and for unpaid disciplinary suspensions of one or more full days imposed in good faith under a written policy applicable to all employees for workplace conduct rule infractions. Deductions may not be made for absences caused by the employer or the operating requirements of the business, or for jury duty, witness attendance or temporary military leave, although jury, witness or military pay received for that week may be offset. During unpaid FMLA leave, a proportionate part of the salary may be paid.

Worked examples. These follow directly from the rules cited. Exempt deduction: an exempt employee paid $1,200 a week on a five-day schedule is absent one and a half days for personal reasons. The regulation allows a deduction only for the one full day; using the daily equivalent permitted by 29 CFR 541.602(c), that is $240, not $360. FMLA partial week: the same regulation's example says an employee who normally works 40 hours and uses four hours of unpaid FMLA leave could have 10 percent of that week's salary deducted (29 CFR 541.602(b)(7)). Points and protected leave: if a policy issues a final warning at six occurrences and an employee's sixth absence was designated FMLA leave, the FMLA rule means that absence is not counted, so the employee is at five (29 CFR 825.220(c)). Partial sick leave in California: the Labor Commissioner says an employee absent a full eight-hour day who uses only four hours of accrued paid sick leave may receive one-half of an occurrence for the uncovered four hours.

Where states differ. Federal law sets the baseline; many states and cities add paid sick leave laws that limit attendance policies. Two examples from official state pages: the California Labor Commissioner's paid sick leave FAQ quotes Labor Code section 246.5(c) and says that if an employee has accrued and available sick leave and uses it for a covered purpose, it is not permissible to give an occurrence for the absence; Labor Code section 234 makes an absence control policy that counts kin care sick leave as an absence leading to discipline a per se violation. The same FAQ says paid sick leave may not be denied solely for lack of medical certification. Oregon's Bureau of Labor and Industries says absences that qualify under the state sick time law may not be the basis for discipline, that medical verification may be required only in limited cases, such as more than three consecutive scheduled workdays or a suspected pattern of absenteeism, and that the employer pays verification costs. Other states differ; check your state labor agency.

Recordkeeping. FMLA-covered employers must keep records for at least three years, including dates of FMLA leave, hours of partial-day leave, written leave notices, and documents describing their paid and unpaid leave policies and practices (29 CFR 825.500(b) and (c)). FMLA certifications and medical histories must be kept as confidential medical records, separate from the usual personnel file (29 CFR 825.500(g)).

Can a policy require a doctor's note? The EEOC says a note rule applied to all employees is allowed under the ADA, but FMLA certification has its own timing rules, the PWFA limits documentation to what the employer would normally ask, and some states, such as Oregon, restrict notes for short absences. Confirm specifics with the Department of Labor, the EEOC, your state labor agency or a qualified professional.

Why it matters and common mistakes

How Remindax helps

Related terms

See all terms in Leave & Time Off or browse the full HR Glossary.