What to Do When the VE Testifies that Two or More Absences Are Tolerated

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

• No (federal) law requires employers to provide sick leave. In 2021, per the DOL, workers were absent 2.96 days for the YEAR. See lost worktime rate here.
  • 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 the real world, employers do not give anything close to these many days off.

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 to hold it when it could be filled by any other person?
  • How much sick leave does the law require? (The answer is none. See DOL).
  • How many sick days are actually taken in the US? (1.4 to 5.9 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 2020 VE Handbook statement that VEs “should be able to thoroughly explain what resource materials [they] used and how [they] arrived at [their] opinions.”
  • Consider getting statements from a handful of employers, or a VE to submit as rebuttal evidence.

The facts prove that 2 or more absences per month is not an accurate statement of the reality of the working world.