Heard it on the Hotline: What Do We Need to Consider Before Terminating Someone for Poor Attendance or Performance?

The last two years have been taxing. As some employers have begun to resume new-normal operations, many remote employees have been asked to return to working schedules similar to those they worked prior to the pandemic. Many companies are not fully staffed, and some workers are calling off more than usual while others seem less productive or less engaged. So, the fallout continues, and the MRA hotline often hears, “What do we need to consider before terminating someone for poor attendance or performance?”

What Is the First Step?

Each situation is unique. Failing to give appropriate consideration to the situation could result in a legal claim. Employers should be careful not to make hasty decisions and to review all the details. It is important to have a strong, knowledgeable expert within your team to ensure that any action taken is consistent with your policies, practices, and the law. This is especially important when tensions are high, and a level of exhaustion has been reached.

What You Can Do

Employers need to carefully assess their existing policies, procedures, and practices to ensure employees are being given equal and fair treatment. Start by looking at your employee handbook and other employment policies and procedures. For example, policies on leaves of absence, disputes and problem resolution, anti-discrimination, health and safety, employee benefits, and working conditions may provide protection. Other policies and procedures give employees certain benefits and a sense of comfort and protection. These may go beyond what is legally required of the employer. Some employers stretch flexibility beyond the employee handbook, creating established unwritten procedures or practices that also need to be considered. Employer policies and procedures must, of course, comply with the minimum requirements the law.

What to Avoid

There are things you likely cannot do, even if employment is “at-will.” Unless there are explicitly clear attendance policy violations and there are no provided protections under company policy or law, it may be risky to terminate the employee. As desperate as the situation may appear to be, there are myriad reasons to avoid just letting the person go and starting over.

• Equal Employment Opportunity and Discrimination – Americans with Disabilities Act, Age Discrimination Act of 1967, Title VII of the Civil Rights Act of 1964, Equal Pay Act
• Workplace Safety – Occupational Safety and Health Act
• Organization of Labor – National Labor Relations Act
• Federal Contractors – Executive Order 11246
• Military Rights – Uniformed Services Employment and Reemployment Rights Act
• Family or Medical Leave – Family and Medical Leave Act
• Migrant Workers – Migrant and Seasonal Agricultural Workers Act

State laws, such as state worker’s compensation and sick and safe laws, or municipal ordinances may include additional considerations.

No two situations are the same and it is important to look at all the details. It is also important to consider any prior decisions you have made that may have set a precedent, even if there is no established policy or procedure in place. When you run into a less-than-clear situation, remember to lean on trusted resources before taking any adverse action.

An employment attorney can help, or contact the MRA 24/7 HR Hotline at (866)HR-Hotline (866.474.6854) or [email protected].