Warren Investigates Report That FedEx, Walmart Punish Workers for Taking Time Off

On Tuesday, the senator sent letters to the CEOs of five of the country’s largest employers demanding information about their respective attendance policies.
July 30, 2020, 1:25pm
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Flickr/Gage Skidmore

Senator Elizabeth Warren sent letters to the CEOs of FedEx, Walmart, Conagra, 3M, and Kroger on Tuesday demanding information about their respective attendance policies and whether companies are adequately informing workers of their legal rights to take time off work without punishment.

The letters follow a June report by the legal advocacy group A Better Balance that investigated 66 U.S. companies (including those contacted by Senator Warren)  that use points-based attendance policies, also known as “no-fault” attendance policies, which penalize workers who call out of work, regardless of the reason. The report found that these companies use points-based attendance policies to “infringe on workers’ rights by punishing them … for absences that are legally protected, including time off for serious medical needs.”

Warren’s investigation arrives at a time when essential workers at the country’s largest and most profitable companies have felt pressured to go to work sick despite the risk of spreading or contracting COVID-19. Amazon delivery drivers and warehouse workers have told Motherboard that they’ve felt pressured to work while ill during the pandemic due to the company’s attendance policies; Amazon was also caught violating paid-leave laws intended to prevent the spread of COVID-19 in California. Meanwhile, scores of meat-packing workers and grocery store employees at companies that use penalizing attendance policies have died from Coronavirus in recent months.

“Punishing workers for exercising their workplace rights is a violation of the law, and I am seeking to ensure that your company’s attendance policies clearly explain workers’ rights and do not knowingly or unknowingly lead to the illegal discipline or termination of workers taking legally-protected leave,” Warren wrote in her letter to the CEOs.

Tyson Foods, United Airlines, Cargill Meat Solutions, JBS, and Shell Chemical are also among the major corporations to have attendance policies that penalize workers for calling out sick, according to the A Better Balance report.

A variety of federal, state, and local laws exist that give workers the right to take time off from work for medical needs. The newly enacted Families First Coronavirus Response Act, for instance, requires that certain employers offer up to two weeks of paid sick leave, and up to twelve weeks of emergency family leave, for workers with conditions related to COVID-19. The longstanding Family and Medical Leave Act (FMLA) provides eligible employees with serious health conditions and newborn babies up to 12 weeks of unpaid leave. Employers cannot dock eligible workers for accessing either benefit.

Enacted 30 years ago, the Americans with Disabilities Act, similarly, requires that all employers consider providing unpaid leave to workers with disabilities even if the company does not have a paid leave policy, and cannot penalize workers who utilize the benefit.

Despite these legal protections, the report by A Better Balance found that more than 80 percent of the 66 companies it investigated “failed to make clear that employees will not receive points for qualifying disability-related absences.” Only one of the policies made it clear that the FMLA can be used during pregnancy.

“Many workers don’t have access to the attendance policies that govern their employment,” Senator Warren wrote in her letter to the CEOs. “These policies should provide information about what leave is legally protected so workers understand their rights; not being able to access written policies makes it even harder for workers to know that their rights may have been violated, and to challenge illegal discipline or termination.”

Senator Warren, who during the pandemic proposed an Essential Workers Bill of Rights and cosponsored the PAID Leave Act for workers, has requested the five companies respond and provide a copy of their absence policies to her by August 11.