Under “no-fault” attendance policies, employees accumulate a set number of “points” per absence — regardless of the reason for the absence. After an employee accumulates a pre-designated number of points, the employee is usually subjected to increasing levels of discipline ending with termination.
Understandably, these policies are often used by companies that cannot expend time or resources to determine the reason(s) for each absence. While the policies may seem fair and make sense from a business standpoint, they also create significant legal risks. Most importantly, points cannot be assessed for absences that fall under the Family and Medical Leave Act (FMLA), Americans with Disabilities Act (ADA), Washington Law Against Discrimination (WLAD) and other state leave laws.
Recently, the U.S. Equal Opportunity Commission (EEOC) filed suit against AutoZone, claiming the company violated the law by applying its attendance policy in a way that failed to accommodate certain disability-related absences. AutoZone had a no-fault attendance policy. Employees would automatically receive points for absences. Upon accumulating 12 points, an employee would be terminated. According to the EEOC, the AutoZone policy did not make any allowances for disability-related absences (such as early departures to attend counseling by an employee suffering from PTSD; or, an asthmatic employee in need of medication). The EEOC has alleged AutoZone’s no-fault constituted a failure to accommodate.
Employers often erroneously assume that if employees do not qualify for (or have exhausted) mandatory state or federal leave they can be terminated for their absences. However, if the reason for the absence relates to an employee’s medical condition, it’s critical that each absence be considered under a disability-reasonable accommodation analysis as well.
Joseph Marra is a Managing Partner at Davis Grimm Payne & Marra representing Employers in labor and employment laws. For more information Joe may be contacted at firstname.lastname@example.org, or at (206) 447-0182.