When Weather Gets Bad, Do No-Fault Attendance Policies Hold Up?

While we in Minnesota are used to balmy 50-degree weather now that spring has arrived, some of us have forgotten how awful the weather can get in the north.  Some people may not recall how, just one winter ago, schools and businesses throughout the upper midwest closed down due to severe cold and snow.  For as much planning as an employer can do for natural weather phenomena, there is no way to stop the impacts of dangerous weather can have on a business.

In January 2019, temperatures dropped to between -20 and -28 degrees Fahrenheit, and wind chills reached between -50 and -58 degrees in the city of Albert Lea, Minnesota.  The public was advised to stay inside and not venture out into the cold unless it was absolutely necessary.  On January 30, MNDOT pulled its plows from the roads due to mechanical issues the trucks were experiencing with the extreme cold.  However, roads were not closed and most locations across the state were still accessible.

At the Cargill plant in Albert Lea, factory management was preparing for the weather, much like everyone else, and making a decision as to whether it would keep its processing plant open during the inclement weather on January 30 and 31.  The company ultimately made the decision to keep the plant open during the storm, and employees were expected to attend work that day.  However, due to the weather, only 169 out of 230 employees attended work on January 30.  Four employees were late and 43 employees called in to work due to the weather.  On January 31, 201 employees showed up to work on time, and two employees were tardy.

Under the company’s no-fault attendance policy, those employees who did not show up were credited one point towards their maximum accumulation of seven in a calendar year.  The no-fault attendance policy was not a part of the parties’ collective bargaining agreement.  The company showed leniency in not crediting a half-point to the employees who showed up late to work those days.

Despite this, the Union grieved the employer’s decision to issue points under its attendance system based on the extreme conditions that existed on those days.  In Cargill Meat Solutions and United Food and Commercial Workers, Local No. 6, the Union argued the employee safety provisions of its collective bargaining agreement dictated that employee safety should have taken precedent over the employer’s no-fault system, and employees should not have been issued points for not attending work on days where severe weather conditions existed.

In his decision, Arbitrator Kapsch found that although the language from the safety section of the collective bargaining agreement referred to safety “away from work,” the contract did nothing to define any obligations for the employer in situations where employees might experience difficulty making it to the plant.

Arbitrator Kapsch found that the point of the no-fault attendance policy was to eliminate the need for employees to come up with an excuse for absences, and provide a cushion for employees who have difficulty making it to work for one reason or another.  The system also clearly defined absences were excused and would not be counted against an employee’s attendance totals.  Finally, the language of the policy stated, “Any and all weather related absence occurrences are subject to management discretion.”  While the union argued such language created an exception for the no-fault policy, the arbitrator found the decision as to whether to apply the policy in this situation was in the discretion of the employer.  As the employer decided to uniformly apply the policy’s terms, the arbitrator could not find a violation occurred.

While this decision is weather-related, it can be applied to any number of situations involving natural events that impact employee availability to work (think diseases that rhyme with “Schmaronaschmirus”).  A well-crafted no-fault attendance policy should leave no question as to what kinds of absences are excused from being a demerit, and leave any discretion in the hands of the employer.  At the same time, when discretion is exercised, employers should be aware of the possibility that a practice is created, and be able to distinguish those times when absences are excused and not excused under the policy.  As long as an employer strictly adheres to the terms of its policy, it can feel safe knowing that its decisions will be upheld if every challenged by employees.

Employee attendance matters can be difficult to handle, and it’s important that an organization understands both the law, as well as its own policies when dealing with attendance issues.  If you, or your organization need assistance with your employee absence management, contact the Wiley Law Office, for advice that works.