Policy required document Workplace
Attendance and Leave of Absence Policy
An attendance policy sets what counts as an absence or a late arrival, how absences are recorded, when they lead to discipline, and how an employee asks for time off beyond vacation. No statute requires one, and that is exactly the problem: employers write them to manage reliability, then apply them to absences the law protects.
A no-fault policy that assigns points for every absence regardless of reason, and terminates at a set number, counts FMLA leave the regulation says cannot be counted (29 CFR 825.220(c)), counts disability leave the EEOC says must be assessed individually, and counts time off that state sick leave, jury duty, voting, domestic violence and military leave laws protect.
The policy that was meant to reduce disputes becomes the exhibit in one.
The exposure sits at the seams between this document and the two beside it. The Labor Department's FMLA findings in fiscal year 2025 included 106 cases of discrimination or disciplinary action connected to leave and 65 terminations; the EEOC's 2016 leave guidance says an employer that could have provided unpaid leave without undue hardship but fires the employee instead has violated the ADA.
A defensible attendance policy names the protected absences it will never count, requires a review before any discipline for absence, and routes any absence tied to health, pregnancy, family care or a legal duty into the leave, accommodation or state-law procedure before points are assigned.
Paid sick leave is now mandated by 18 states and the District of Columbia, plus many cities, each with its own accrual, carryover and anti-retaliation rules, so the state schedule is part of the document.
Obligation ledger
Who requires it, and what each one says.
| Source | Applies when | What it requires | Status |
|---|---|---|---|
| FMLA regulations, protection for employees who request leave 29 CFR 825.220(c) | Employers covered by the FMLA (50 or more employees) | Employers cannot count FMLA leave under no-fault attendance policies or use it as a negative factor in employment actions. Legally required. | Mandatory |
| EEOC, Employer-Provided Leave and the Americans with Disabilities Act EEOC guidance, May 9, 2016 | Employers with 15 or more employees | Employers may have to grant leave beyond a policy maximum as a reasonable accommodation unless undue hardship; leave must be considered as an accommodation even where the employer offers no leave benefit; firing under a leave cap where unpaid leave could have been provided violates the ADA. Agency guidance. | Implied |
| Uniformed Services Employment and Reemployment Rights Act 38 U.S.C. 4311 and 4312 | Every employer, any size | Employees may not be denied employment, reemployment, retention or any benefit because of military service; up to five cumulative years of service leave with reemployment rights. Absences for service cannot be counted against the employee. | Mandatory |
| California paid sick leave Cal. Lab. Code 246 and 246.5 | California employers, from the first employee | At least 40 hours or five days of paid sick leave a year; using it cannot be counted as an absence that leads to discipline or any adverse action (246.5(c)). One example of the state paid sick leave laws now in 18 states and the District of Columbia. | Mandatory |
Required sections
- What counts as an absence, a late arrival and a no-call no-show, and how each is recorded
- The call-in procedure: whom to notify, by when, and by what method, with an exception for emergencies
- A list of absences that are never counted for discipline: FMLA and state family leave, leave taken as an ADA or PWFA accommodation, state paid sick leave, military service, jury duty, voting, witness duty, domestic violence leave, and any other leave a state protects
- A rule that any absence connected to health, pregnancy, family care or a legal duty is routed to the leave or accommodation procedure before any point or occurrence is assigned
- If a points or occurrence system is used, the review step before discipline and the person who performs it
- Personal leave of absence: eligibility, how to request it, duration, benefits during leave and return rights, kept separate from statutory leave
- The state paid sick leave schedule: accrual, carryover, permitted uses, and the anti-retaliation rule for each state where the employer has staff
- Job abandonment: the number of consecutive no-call no-show days that ends employment, and the attempt to contact the employee that precedes it
- Cross-references to the FMLA, accommodation and anti-retaliation policies so the documents agree
What the examiner asks for
What changed
Change log.
Frameworks
Where this document is required.
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From the publisher
Manage This Document in AllyMatter
Route it for approval, keep every version, and record a named acknowledgment from everyone who has to read it.
Questions
What people ask.
Are points-based attendance policies illegal?
No. They are lawful for unprotected absences. They become unlawful the moment a protected absence earns a point, which is why the policy has to list the protected categories and route those absences elsewhere before points are assigned.
Can we set a maximum amount of leave, after which employment ends?
Not as an automatic rule. The EEOC's position is that leave beyond the maximum may be a required accommodation unless it causes undue hardship, and that firing at the cap where more unpaid leave could have been given violates the ADA. A maximum can exist as a trigger for an individual assessment, not as a termination date.
We are in one state with no paid sick leave law. Is the state schedule still needed?
Only for the states where you have employees, including remote ones. An employee working from home in another state is covered by that state's law. Eighteen states and the District of Columbia now mandate paid sick leave, and remote hiring is how employers acquire them without noticing.
What is the single most common mistake?
Treating an absence as an attendance problem before finding out why. An employee who calls in sick three days running and is written up on day four may have been describing a serious health condition, a disability or a pregnancy. The routing rule, that health-related absences go to the leave procedure first, prevents most of the claims on this page.
Sources
29 CFR 825.220, protection for employees who request leave or otherwise assert FMLA rights (Cornell LII)EEOC, Employer-Provided Leave and the ADA (May 9, 2016)38 U.S.C. 4311, USERRA discrimination and retaliation prohibited (Cornell LII)Cal. Lab. Code 246.5, paid sick leave protections (California Legislative Information)U.S. Department of Labor, Wage and Hour Division, FMLA enforcement data by fiscal year