Monday, September 23, 2019

No-fault attendance policies offer no cover when the ADA or FMLA are involved

An employee suffering from epilepsy, migraines, and heart condition asks (with a medical note) for two unpaid days off from work unpaid to treat symptoms related to her disabilities. Instead of granting the leave, the employer assigns the employee points under its no-fault attendance policy and fires her for exceeding the allowable number of attendance points. The EEOC has sued the employer, alleging disability discrimination.

A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues. These policies, however, carry, a certain degree of risk—namely in the handling of absences protected by the FMLA or ADA. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy. And, in this case (assuming the medical note is legit), and for this reason, it appears this employer has a big problem with the EEOC.

On a more basic level, where’s the humanity in denying two days off for an employee to deal with medical symptoms (especially when the request is accompanied by a doctor’s note). The ADA requires reasonable accommodations. Unless the employee is a serial abuser of unpaid days off, it’s hard to imagine a situation in which two days is not a reasonable request. 

* Photo by Sharon McCutcheon on Unsplash