September 29, 2022

Faulty No-Fault Attendance Policy

Many employers use no-fault attendance policies. I am not a fan of them. I also understand they are easy to administer. No management discretion is required. In short, it is usually a point system. For each absence, the employee gets a point. As the employee accumulates points, corrective action is issued, up to and including discharge.  The rationale is that we assume positive intent and believe your absence is not your fault. Everyone is treated equally; you get a point for every absence, regardless of the circumstance.  But here, equality may not be equitable.

On September 29th, the U.S. EEOC announced that it filed a lawsuit against an employer who violated the Americans with Disabilities Act by failing to provide an employee with time off from work, then subsequently fired her under its no-fault attendance policy.

Here’s the rest of the story. In the court filing, the EEOC alleges the employee was discriminated against based on her sex, national origin, ethnicity/race, and explains that her disability was temporary due to pregnancy.  The employer failed to engage in an interactive dialogue, denied the employee’s request for a limited lifting requirement, and denied the employee’s request to transfer to another position. The complaint alleges another employee, a white female, was provided with time off from work due to pregnancy.

Lessons learned?  Does the ADA require an employer to make an exception to its attendance policy?  It at least requires you to consider it. One employer discovered this to the tune of $20M, the largest ADA settlement at the time.  If you determine that the exception would impose an undue hardship, talk to your employee, and explain why. The employee might not like it, but at least they will recognize that you gave it consideration and talked to them about it.