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Most employers are faced with employees who call in sick without notice, don’t show up for work, or are unduly absent for other reasons. Employers faced with this problem often wonder when they can legally terminate an employee for such misconduct.

This is important, because employees discharged for “misconduct” are generally ineligible to receive unemployment compensation benefits.

Wisconsin Statute 108.04(5) defines absenteeism, in the context of “misconduct” justifying the denial of unemployment, as occurring when an employee is absent “on more than 2 occasions within the 120-day period before the date of the employee’s termination, unless otherwise specified by his or her employer in an employment manual of which the employee has acknowledged receipt with his or her signature …”.

What if an employer wants not only a different definition of “absenteeism” but one stricter than the statute?

Happily, for employers, in June of 2018, the Wisconsin Supreme Court, in Wisconsin Dep’t of Workforce Dev. v. Wisconsin Labor & Indus. Review Comm’n, gave employers the green light to do so.

There, an employer’s written absenteeism policy stated that a probationary employee could be terminated if he or she did not “call in two hours ahead of time” if unable to work.

When the probationary employee failed to call two hours in before missing her shift due to sickness, she was fired.

The Wisconsin Supreme Court, relying on the statute’s plain language, held that an employer can create such a policy, a violation of which constitutes “misconduct” for unemployment purposes.

The Court reasoned that the statute affords employers the option to opt out of the statutory definition and create their own absenteeism policies, even if they are stricter than the statute.

Even though this decision applies only to absenteeism, and not other aspects of “misconduct” for unemployment purposes, it is a win for employers. Employers can legally include in employee handbooks written absenteeism policies that are stricter than the statutory provision. Employers are not, however, without boundaries. Such policies must be included in an employee manual or handbook and acknowledged and signed by employee.

They cannot be buried in the depths of a manual that is never received or acknowledged by the employee.

This case highlights the importance of well-drafted employee handbooks, and established protocols for their receipt and acknowledgement by employees.

Contact your FOS attorney for assistance drafting, reviewing and updating your absenteeism policy and employee handbook.