Many employers favor a "no-fault” or points-based attendance policy because it promotes uniform treatment of all employees with excessive absences and clearly defines to employees the consequences of taking too many days off from work. It also avoids the employer questioning workers about their absences, allowing employees to manage their own time off in their own way. The way that these policies operate is that an employee is given a point (or fraction thereof) for every absence. When the employee exceeds a certain number of points, they are disciplined up to and including discharge.
Let’s take two scenarios, though, that could get an employer in hot water. The first, and more obvious one, is when an employee takes FMLA leave-including intermittent FMLA leave. It should seem apparent that these absences should not result in an employee being assessed attendance points-even if they are also using benefit time to continue pay, when the policy would otherwise include benefit time as “point eligible” absences. The reason is simple. FMLA provides job protection for eligible employees and the employer cannot interfere with that right.
The less obvious scenario is when an employee is absent due to a disability and the employer has not explored whether occasional or a continuous leave of absence is a reasonable accommodation for the disability. Here is an example. An employee is diagnosed with a serious illness. She needs to be off work for a period of time for treatment, which will be covered by FMLA. She exhausts that benefit and can return to work but needs to take every Wednesday afternoon off for follow up treatment. The employer does not find these absences to create an undue hardship, but the employer starts assessing attendance points for each of these absences. She ends up being discharged for violation of the attendance policy.
Since the attendance points were accumulated as a result of her disability, the employer could expose itself to an ADA claim. Without finding that the employee’s absences were creating an undue hardship, the attendance points assessed against her when she was absent for treatment or recovery could be viewed by a court as amounting to discharging her for having a disability.
Last year, in EEOC v. Mueller Industries, Inc., the EEOC filed suit in the U.S. District Court for the Southern District of California against Mueller Industries, Inc., a global manufacturer, claiming disability discrimination in a similar situation for failing to provide a reasonable accommodation to workers who needed to be absent from work to recover or for treatment of a qualifying disability after discharging disabled workers under its attendance policy. The EEOC took the position that the “no-fault” policy did not allow for the type of individualized assessment that the ADA requires.
To avoid liability, employers should include a provision in their no-fault attendance policies that clearly articulates that no points will be assessed for FMLA or ADA qualifying reasons. Employers should also ensure that every job description lists regular attendance as an essential function of every employee's job.