What if I’m late to work but it’s not my fault?
One of the most frequently given reasons for an employee’s discipline or termination is attendance. Employees miss work, with or without notice, or show up late, all the time. Employers vary in how they handle attendance and punctuality issues. In fact, often a single employer will vary in how they handle attendance issues from employee to employee. Employees call us all the time because they have been written up, disciplined, or even fired due to their attendance. Today we are going to address what action your employer can and cannot take with respect to attendance and punctuality. Can you be fired for being late to work?
The default answer is “yes,” your employer can discipline you for being late to or missing a day of work, up to and including ending your employment. Most employees in Michigan are at-will, which means they can be fired for any reason that is not an illegal reason. Attendance, on its face, is considered to be a legitimate non-discriminatory reason for termination.
It must be acknowledged that there are circumstances that may be beyond an employee’s control that cause that employee to be late or absent. There can be unexpected traffic, especially in Michigan when construction is underway. There can be weather such as snowstorms that creates adverse road conditions. Employees can have unexpected issues with their transportation. In general, employers do not have to be accommodating of these issues. Even if there was an accident in a snowstorm and your car broke down, you can be fired for being late to work.
As always, there are exceptions. One significant exception is discrimination. An employer can have a strict attendance policy, but the policy must not be applied on a discriminatory basis. For example, say an employer has a policy that says an employee is fired after acquiring a certain number of attendance points. Female employees who are late due to childcare issues are given points pursuant to the policy, which is legal. An employer does not have to allow an employee to be late to work due to childcare issues. However, male employees who have childcare issues are allowed to be late or absent. This is illegal discrimination. An employer can be strict about attendance or make exceptions for unexpected childcare issues- either is allowable. An employer cannot treat employees differently when it comes to attendance solely based on their sex, race, religion, color, national origin, age, or any other protected trait. There may be other differences that make the difference in treatment allowable, such as the men in question working in different positions or at different locations, but in general a protected trait cannot be used as the basis for treating employees differently when it comes to attendance.
Another exception to the general rule that employees can be disciplined and even fired for attendance issues is disability. Employers are required to make reasonable accommodations for conditions that count as “disabilities” under the Americans with Disabilities Act, provided the accommodations are not an “undue hardship.” Whether allowing an employee to be late or absent is required, and how much notice must be given, are situation-specific issues that must be considered on a case-by-case basis. Depending on the employee’s job, the size of the company, the actual disability, and how it impacts the workplace, allowing an employee to be late or absent may or may not be a reasonable accommodation. If your situations are such that you are entitled to be late for work under the ADA, and your employer has approved this accommodation, you cannot be disciplined for exercising your ADA rights.
There are some other situations that may offer an employee protection in the event of being late to work or missing a day. One such situation is if the employee has an employment contract that specifically allows tardiness or absence. Another is being a part of a union that has rules protecting the employee.
If you believe that you have been fired for attendance or any other issue in violation of law, call Gold Star Law for help.