March 28 Tip of the Week
“No Fault Attendance”
Every employer knows that regular and reliable attendance is one of the hallmarks of an effective and productive employee. Employees are unable to contribute to the employer’s operations and be good team players if they are not at work and performing their job duties. In an effort to ensure this reliable attendance, employers often implement “no fault” attendance policies.
A “no fault” attendance policy is one where an employee receives points when they are absent or tardy from work regardless of the reason for the absence or the tardiness. Once an employee has accumulated a certain number of points under the policy, the employee will be terminated. Generally, these policies contain either a reset or an opportunity for an employee to “lose” points under the policy through either the passage of time (the reset) or through periods of good attendance. How a policy is written and implemented will determine whether the “no fault” attendance policy passes legal muster or not.
Under the Family and Medical Leave Act, an individual who takes family and medical leave cannot be negatively impacted because of the taking of such leave. If an employee on FMLA leave receives points under a “no fault” attendance policy, that would be a negative impact and would violate the Act. This is particularly true if an employee who is on another form of leave (sick leave, vacation, etc.) does not accrue points under the attendance policy.
In 2018, the Department of Labor issued an opinion letter regarding the validity of a “no fault” attendance policy. In that opinion letter, the Department of Labor affirmed the principle that an employee who is out on FMLA leave may not accrue points under a “no fault” attendance policy. The Department of Labor also confirmed that an employee on FMLA must be treated the same as other similarly situated employees with respect to the benefits available to them – they are not entitled to accrue more benefits while out on FMLA leave, but they cannot be penalized under an employer’s benefit programs for having taken such leave.
Similarly, “no fault” attendance policies have been scrutinized by the Equal Employment Opportunity Commission as violating the Americans with Disabilities Act. The EEOC has taken the position that these “no fault” attendance policies are illegal on their face because they do not take into consideration the need to provide leave as a reasonable accommodation to an individual employee under the ADA:
May an employer apply a “no-fault” leave policy, under which employees are automatically terminated after they have been on leave for a certain period of time, to an employee with a disability who needs leave beyond the set period?
No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation.
Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act, Equal Employment Opportunity Commission, https://www.eeoc.gov/laws/guidance/enforcement-guidance-reasonable-accommodation-and-undue-hardship-under-ada#leave. In furtherance of its position, the EEOC has brought a number of claims against employers with these types of “no fault” attendance policies.
A relatively recent federal court decision, EEOC v. Austal USA, LLC, 447 F.Supp.3d 1252 (2020), however, has taken exception with the EEOC’s approach and granted summary judgment to an employer who sought to enforce a “no fault” attendance policy against an employee with a disability (diabetes). The employee’s disability required him to have unpredictable, intermittent absences from work when he was unable to control his blood sugar levels. Even when the employee was able to report to work, he would often have to leave early due to issues with his blood sugar levels and, in one instance, the employee fell on the job due to his disability and injured his wrist.
Finding that regular attendance is an essential function of most jobs and determining that additional or unlimited leave is not a reasonable accommodation, the court granted the employer’s motion for summary judgment. In reaching this decision, the court noted that the employer had already provided more leave to the employee than they were required to under the FMLA and the employer’s own extended leave policy, but noted that there was no indication that the employee, even with additional leave, would ever be able to perform the essential function of his job – regular attendance.
What does this mean for employers? “No fault” attendance policies must be reviewed to ensure that, both on their face and through their implementation, they do not discriminate against employees who take FMLA leave or require time off from work to address disabilities. When dealing with an employee who has poor attendance, it is easy to get frustrated and to treat the employee poorly as a result. The court’s decision, however, shows the importance of working with employees and trying to identify accommodations that will assist them in performing the essential functions of their job. This means that the interactive process under the ADA is essential – employers must engage in this process in a genuine manner in order to meet their obligations under the law. MyHRCounsel can guide you through this process and ensure that you are in the best position to defend yourself and your “no fault” attendance policy from any challenges by the EEOC or your employees.
Be sure to join us on April 20th for our next webinar. We’ll be covering the many attendance issues for employers, including: FMLA, ADA, paid sick-leave and more!