Winning Attendance Claims: Unlocking the Mystery

In all of my years fighting unemployment claims on behalf of employers, I would argue that it’s easily attendance-based claims that cause the most frustration.

This is an understandable frustration. After all, isn’t the first and probably most important requirement of an employee to actually show up to perform their duties? So why does the state take such a liberal view towards adjudicating attendance-based claims?

It begins with the language of employment security law. In most cases, the language emphasizes whether the claimant had “good cause” to be absent or tardy as opposed to the frequency of their attendance infractions.

In an effort to be fair to both claimant and employer, “good cause” was added to help differentiate between a person who had legitimate reasons to be absent and those who just did not like coming to work. “Good cause” is generally interpreted as an instance of absenteeism that was outside the control of the claimant. For example, personal illness, illness of dependents, etc. are examples that usually fall under the umbrella of good cause. The thought process was to make the claimant prove that their instances of attendance were unavoidable.

As time progressed, good cause became much more grey with more excuses included under this umbrella. New laws which limited the amount of information that an employee had to provide about health issues further complicated the issue. Finally, the advent of “no fault” attendance policies only widened the gap as these policies focus strictly on a set number of allowable occurrences. Combined with an increasingly liberal adjudication, this caused many employers to simply concede unemployment insurance claims based on attendance.

With a little ingenuity and patience, an employer can obtain a disqualification for an attendance-based claim. Here are a few helpful tips:

1. Understand the statute and modify your policies to make them more in line with the law. If possible, show some flexibility for absences that meet the good cause criteria.
2. Document each instance of absenteeism or tardiness. Even if your policy does not take the reasons into account, it will help when protesting the unemployment claim.
3. When documenting the occurrences, look for patterns. Some states will take into consideration a pattern that appears in the attendance infractions.
4. Look for related policies to the claimant’s attendance issues. For example, did the employee properly report the issue of attendance? If they did not, focus the reprimand on their failure to comply with a more black and white policy.
5. Request proof of the reason for the absence. In many cases, the employee will not be able to provide proof that meets “good cause.” During the adjudication process, it can be argued that proof was requested, but they failed to provide it.

Following these tips will take a minimum of time, but will provide a better chance of preventing these types of claims.