George Piemonte, NOSSCR 11th Circuit Board Representative

VEs in hearings will often testify that employers accept 2 (or even more) absences per month. What is wrong with this?

• No (federal) law requires employers to provide sick leave. In 2024, per the DOL, workers were absent 3.2 days for the YEAR, resulting in 1.7 days of lost worktime. See: BLS’ Annual Averages: Absences from work of employed full-time wage and salary workers by occupation and industry.
• In the real world, only valuable employees (i.e. skilled workers) are allowed regular absences.
• In unskilled work, the employer has no reason to hold a job for an absent worker, as any applicant can do the job without skills.
• In everyday workplaces, employers do not give unskilled workers anything close to two or more days absent per month.

So, how do you handle this testimony when the VE makes such a statement? You can ask the following questions:

• Why would an employer hold an unskilled job for a sick worker?
• What is the business case for holding it when any other person off the street could fill it?
• How much sick leave does the law require? (The answer is none. See DOL above)
• How many sick days are actually taken in the US? (1.7 to 3.2 days per year. Available at DOL site above)
• What is the source of your testimony? Ask for the specific pinpoint citation.
  • See Biestek v. Berryhill, 139 S.Ct. 1148 (2019) and the January 2025 version of the VE Handbook on pages 3, 19, 21, 30, 33, and 44, stating that the VE must be prepared to cite, explain, and furnish any sources they rely on in their testimony.
• Consider getting statements from a handful of employers or a VE and submit as rebuttal evidence.

The evidence demonstrates that attributing two or more absences per month as a standard benchmark does not reflect the practical realities of the modern workforce.

The views and opinions expressed in this article are the author’s own and do not necessarily reflect the views of NOSSCR, its leadership, or staff.