No fault attendance policies have become hugely popular with employers over the past decade or so. Rather than setting aside sick leave, vacation leave, parental leave, etc., employers have increasingly just permitted employees to take a certain number of days off regardless of the reason.
Many no-fault attendance policies work by assigning a certain number of points for an absence, coming into work late, or leaving early. For example, if you come into work an hour late, you will be given one point. If you miss a day of work, you will be given three points. Employees are permitted 40 points during the year. Exceed that number, and you will be fired or docked pay. Such a policy is straightforward and easy to administer.
There is a catch, however. The Equal Employment Opportunity Commission (EEOC) has recently proven hostile to such policies. The EEOC has raised concerns that such policies do not allow for individualized assessments of employee circumstances, and may therefore run afoul of employment laws like the Americans with Disabilities Act (“ADA”). The ADA, for example, requires employers to make an individual assessment of a disabled employee’s circumstances, and give that employee a “reasonable accommodation” (i.e. changes in the workplace that permit the employee to work in spite of his or her disability) if one is required.
In EEOC v. Mueller Industries, Inc., the EEOC criticized an employer for failing to make an individualized assessment in regards to a disabled employee by its blanket and uniform enforcement of its no-fault attendance policies. It worried that such policies created systematic discrimination against employees with disabilities in violation of federal law. After all, under the ADA, once an employee informs his or her employer of a disability, the employer then has the responsibility to attempt to provide the employee with a reasonable accommodation.
So, the lesson to be learned from this is not necessarily that no-fault attendance policies should not be used. However, employers should not apply such policies in a blanket and uniform manner. This is particularly true with regards to disabled employees. Employers may need to give these employees extra time off during the day to accommodate their disability. Employers should also be sure that they are giving employees who request leave pursuant to the Family and Medical Leave Act the proper amount of time off.
Feel free to contact me if you would like advice on creating a no-fault attendance policy that doesn’t run afoul of the law.
