Attendance Accountability Guide with NYS Paid Sick Leave

Attendance is one of the lowest-hanging fruits in performance management — and one of the most ignored. Holding employees accountable for basic attendance expectations is the fastest and most overlooked lever for improving accountability, productivity, performance, and overall business health. Shifting the norms around attendance can be done through establishing clear policies that work for your business, training your managers on the necessity and methods for using them, and then providing the tools and support to do so.

One complicating factor in doing this is NYS Paid Sick Leave which requires some absences to be protected from such accountability efforts. The below guide helps you navigate this nuance in your construction and implementation efforts of attendance policies.

 When can I discipline for attendance when an employee misses work?

These steps should be followed and used when administering any attendance policy and corresponding disciplinary action.

1.        Does the employee have any PSL balance left right now?

This could be a separate PSL balance you keep or included in your PTO time (40 or 56 hours of PSL and/or PTO depending on your Company size).

a.     Yes: Proceed to the next step.

b.     No: This counts as an attendance occurrence.

o    Action: You should proceed with recording this as an occurrence under your attendance policy, and you should proceed with any disciplinary action that this triggers under your policy.

 2.       How much PTO/PSL time have they used already this calendar year?

This mainly applies if you have a general policy that you use to account for PSL, or you offer more PSL/PTO each year than what is required by NYS.

a.     40/56 or more: In this case, regardless of the reason for the absence, this attendance occurrence counts against the employee in the attendance policy. In this case they have already exhausted the required 40/56 hours of Paid Sick Leave time you are required to provide and that are protected for the calendar year. Any absences for any reason after this time can be counted as occurrences for the rest of the year.

o    Action: You should proceed with recording this as an occurrence under the attendance policy, and PTO/PSL should be charged, and you should proceed with any disciplinary action this triggers under the policy. *

b.     Less than 40/56: Proceed to the next step.

 3.       Is the reason for the occurrence Paid Sick Leave Qualifying?

a.     Yes: The attendance occurrence cannot count under the attendance policy because it is protected by Paid Sick Leave.

o    As a reminder Paid Sick Leave qualifying absences are those that are for:

• For a mental or physical illness, injury, or health condition of an employee or the employee’s family member.

• For the diagnosis, care, or treatment of a mental or physical illness, injury, or health condition of, or need for medical diagnosis of, or preventive care for, such employee or such employee’s family member; or

• For an absence from work due to the employee or employee’s family member being a victim of domestic violence, a family offense, sexual offense, stalking, or human trafficking.

o    Action: Charge PTO/PSL time, but do not record this as an occurrence under the attendance policy (but should still record the absence and the weekend in the tracker).

b.     No: This counts as an attendance occurrence.

o    Action: You should proceed with recording this as an occurrence under the attendance policy, and PTO/PSL should be charged, and you should proceed with any disciplinary action this triggers under the policy.

* If the reason for the absence is ongoing or chronic refer to the Leave/Disability/Accommodation Instructions (see below)

 Other Notes/Reminders:

An attendance occurrence should be defined as: any unplanned, unscheduled, unapproved absence, including arriving late for a scheduled shift, leaving early, and full day absences (think: schedule variance).

Failure to follow call-in procedure: Regardless of the reason for the absence (protected or not) employees can and should also be disciplined for failure to follow call-in procedure, including no call no shows which should trigger disciplinary action outside the usual protocol.

Doctors notes/Proof: Doctor’s notes or other proof should not be required unless the absence extends over 3 or more days. Also, doctors’ notes provided for any other single day or other occurrences do not change the enforceability rules and protocol listed above.

For recurring, chronic attendance issues and potential additional actions needed:

• Employee Reveals a Medical/Personal Issue Affecting their work

  • Examples of "Red flags" where we may have some kind of obligation to take action include: mentions of personal medical conditions of the employee, or an employee's family member (if they are missing time as a result of caring for this person).

  • In these instances, the Company may be obligated to provide leave (continuous or intermittent), other excused absences, or "accommodations" to help perform job duties.

• Manager Actions/Requirements: If the employee mentions anything along these lines in response to an attendance or performance issue, you should let them know they should contact HR about their options AND you should send HR a note about your convo so we may proactively contact them as necessary.

•  Texting with Employees: It is not in the best interest of you or the Company to be engaging in conversations with employees over text, as these are written records that bind you and the Company to communicated words. We realize eliminating this as a communication method with employees is unreasonable, but in general you should simply be acknowledging what employees say (confirming you know they will be late/absent, redirecting them to HR, etc.), and not be having conversations with employees about performance issues, frustrations, disciplinary action, medical issues, etc. over this platform.

⚠️ Of course, every business is different.
This guide is not intended to be legal or professional advice. Always consult with qualified counsel or an HR professional before finalizing your policies or taking action with employees, especially where protected leave is concerned.