Employee attendance is essential to keeping any workplace running smoothly, but determining when absences become “excessive” is not always straightforward. In California, this issue is especially nuanced because state and federal laws protect many forms of employee leave.
California employees are entitled to various types of protected time off, including medical leave, disability-related leave, pregnancy accommodations, family leave, and paid sick time. When an absence falls under one of these protections, an employer generally cannot count it against the employee when making decisions about discipline, performance, or termination.
Because of these overlapping protections, what an employer considers excessive absences may still be legally protected. Determining whether attendance issues can lawfully be addressed often depends on the reason for the absences, how they are documented, and whether the employer has followed required accommodation and leave laws.
What Does “Excessive Absences” Mean?
California law does not statutorily define “excessive absenteeism”. Instead, whether absences are considered excessive depends on several factors, including the employer’s attendance policy, whether the absences are legally protected, whether they interfere with essential job duties, and whether the policy is applied consistently to all employees.
However, it is important to note that employers cannot label legally protected absences as “excessive” or use them as grounds for discipline.
Attendance Policies Must Still Comply With Law
Even when employers have strict attendance policies, they cannot:
- Count protected absences as “points” in a no-fault attendance system
- Discipline employees for using sick leave (Labor Code § 246.5)
- Retaliate for requesting medical leave under CFRA or PDL
- Refuse to accommodate disabilities under FEHA
- Apply rules inconsistently or discriminatorily
For example, if an employee with migraines takes time off that is supported by medical documentation, labeling those absences as “excessive” may violate California laws such as FEHA or CFRA.
Protected vs. Unprotected Absences in California
California offers some of the strongest employee leave protections in the United States. However, there are clear lines that define protected and unprotected leave. Understanding the differences can make all the difference in an employment claim.
Protected Leave
In California, any absences that are based around paid sick leave, pregnancy-related issues, and family, medical, and disability reasons are all lawfully protected under laws such as California Labor Codes 233, 245, 249 and California Gov. Code 12945, and 12940.
Other absences including jury duty, voting, military service, school emergencies, and leave related to domestic violence or stalking, are also protected under California law. Employers are not permitted to retaliate against an employee for requesting or taking these types of legally protected leave.
Unprotected Leave
By contrast, unprotected absences are generally those not covered by state or federal leave laws. These may include no-call,no-show situations, unapproved time off, chronic tardiness unrelated to a medical condition, or absences taken after an employee has exhausted all available protected leave.
In these situations, employers are permitted to discipline employees for unprotected absenteeism as long as the decision is not based on a protected characteristic or used as a pretext for discrimination, retaliation, or interference with medical, pregnancy, or disability-related rights.
When Excessive Absence Discipline Becomes Illegal
You may have a legal claim if your employer terminates, punishes, and/or refuses to extend unpaid leave as a reasonable accommodation.
Should an employer claim that protected leave is a pattern or apply attendance policies in a discriminatory way, an experienced employment attorney can help you file a claim for any compensation or damages you may be owed.
How Employees Can Protect Themselves
If you have been disciplined or punished for absences that are protected under California law, it is important to gather evidence to protect your rights. Employees in this situation should collect the following documents:
- A copy of the company’s attendance policy
- Documentation for any medical or disability-related absences
- A documented sheet of all absences and the reasons for them
- Copies of doctor’s notes, emails, and HR communications
Once you’ve compiled the proper documentation, d it is recommended that you make an attempt to resolve the issue internally before seeking legal counsel.
Contact Lawyers for Justice, P.C. Today
If you have been disciplined or terminated for “excessive absences,” especially when those absences were legally protected, your rights under California law may have been violated. Speaking with an employment attorney can help you understand whether your employer acted unlawfully and what options may be available to you.
Lawyers for Justice, P.C. represents employees in California employment law matters and works to hold employers accountable when workplace laws are violated.
Contact Lawyers for Justice, P.C. at 818-JUSTICE or fill out our online contact form today for a free, confidential consultation.
Frequently Asked Questions About Excessive Absences in California
What qualifies as “excessive absences” under California law?
California law does not define a specific number of absences as excessive. Whether absences are considered excessive depends on the employer’s attendance policy, whether the absences are legally protected, how the absences affect essential job duties, and whether the policy is enforced consistently. Employers may not treat protected absences as excessive.
Can an employer discipline an employee for using protected leave?
No. Employers are prohibited from disciplining, terminating, or retaliating against employees for using protected leave, including paid sick leave, CFRA leave, pregnancy disability leave, or disability-related leave. Penalizing employees for taking protected leave may violate California Labor Code, FEHA, or CFRA.
Are no-fault attendance policies legal in California?
No-fault attendance policies are only lawful if they exclude protected absences. Employers may not assign points or discipline employees for absences related to medical conditions, pregnancy, disability accommodations, or other legally protected reasons. A no-fault policy that counts protected leave may be unlawful.
What absences are not protected under California law?
Unprotected absences may include no-call, /no-show incidents, unapproved time off, chronic tardiness unrelated to a medical condition, or absences taken after all protected leave has been exhausted. Discipline must still be applied consistently and cannot be used as a pretext for discrimination or retaliation.
What should an employee do if they are disciplined for excessive absences?
Employees should gather relevant documentation, including attendance policies, medical records, doctor’s notes, and communications with HR or management. If discipline involves protected leave or disability-related absences, consulting with an experienced California employment attorney can help determine whether the employer violated state or federal law.