How many times does an employee just call (or text) that they are not coming in?  Not feeling well?  Something vague.  Then months (or years) later, the employer gets a claim that the employee actually had a disability that required accommodating, and the manager knew, but no one engaged in the interactive process?  Sound familiar?  Happens all of the time in my world.

Some employers prefer not to ask why the employee is taking time off, and simply have a bucket of Paid Time Off (PTO).  The rationale is — what you don’t know can’t hurt you — better not to know. But its time to rethink the don’t ask, don’t tell approach to employee time off.  One risk is overlooking evidence of a medical issue that will come back to bite you later. Another risk is pay rate. PTO is often paid at the base rate. Statutory sick pay must be paid at the “regular rate.” So if statutory sick is part of PTO that can get tricky. So in my view, unless there is a PTO bucket and a sick bucket, PTO is a no-go. 

To make it even more complicated, coming in 2023, employees will be able to take time off for bereavement and certain emergency conditions.  They will also be able to take CFRA leave for a “designated person.”   Depending on the size of your business, many employees can also already take protected (but not necessarily paid) time off for domestic violence reasons, school activities, jury duty, witness duty, blood or bone marrow donation, civil service, when a spouse is deployed, Covid-19 (at least through 2022 if they haven’t already taken it), and so many other reasons. 

What is an employer to do?  How about having managers document the reasons for employee absences?  Did the employee admit that they:

• Had car trouble? 
• Missed the bus?
• Overslept?
• Were hung over?
• Have to study for school?
• Needed a personal day? 
• Don’t have daycare?
• Had a visiting friend or family member from out of town?
• Took an unapproved vacation day?
• Their pet (not service dog if they reside in Emeryville) was sick and had to go to the vet? 
• They were sick (just with a cold or indigestion – something transient and non-serious) and they don’t have available sick time?

Document that.  None of those reasons are protected time off.  

Train your managers to send Human Resources a note to file, and better yet, attach the employee’s text admitting to the reason for the leave (“sorry boss, overslept”).  Train the manager to ask, is there a reason for your absence?  Give the employee a chance to say it is protected (“yes, my grandma passed”).  If the employee provides a protected reason for the absence, then do not discipline. If there is a medical issue, engage in the interactive process and document it. Get an admission that all they needed was the time off you gave them. And if you are lucky enough to get an admission of an unprotected absence, like car trouble, at least you will have the evidence to prove it!

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