Employment Law Blog

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Dec 17, 2018

Q&A: No-fault attendance policies must allow many exceptions

Q&AEmployee BenefitsHarassment & DiscriminationLabor RelationsWage and Hour 

Question: We have a “no fault” attendance policy which assigns points for absences, tardies, and early departures. Employees are disciplined and eventually terminated if they reach a certain number of points. We know we have to allow exceptions for legally protected time off, but what if it’s unclear whether an absence is protected?  

Answer: If you’re unsure, then you may need to get clarification from the employee before assigning attendance points to an absence. Some absences are clearly unprotected, such as late arrival due to car trouble or a speeding ticket. Use caution if the employee raises a family or medical reason for an absence, though. Your Vigilant employment attorney can help you determine whether the absence is protected and whether it’s appropriate to ask for medical certification or other documentation of the need for time off.

At Risk for Discrimination Complaint or Retaliation

Employers who assign attendance points to time off that is protected by law are likely to find themselves on the receiving end of a complaint of discrimination or retaliation. Recently, pregnant employees filed a class action lawsuit against Walmart over allegations that they were assessed points for pregnancy-related absences such as morning sickness in violation of state law (Hoover v. Wal-Mart Associates, Inc., NY Sup Ct, complaint filed July 2018).

Several years ago, Verizon settled a lawsuit with the EEOC for $20 million over a no-fault attendance policy that allegedly violated the Americans with Disabilities Act (ADA) by automatically assessing points for disability-related absences without evaluating whether the time off was a reasonable accommodation.

If a rigid company policy eliminates the possibility of an employee exploring reasonable accommodation options for a medical condition, then you may be violating the ADA or other laws.

Helpful Resources

Vigilant members can view our Legal Guide, ADA: Reasonable Accommodation Quick Reference. Contact your Vigilant employment attorney for help with any questionable absences under your attendance policy.

Not a member? Learn more today about how we help employers tackle employment law and HR issues under a flat fee membership.

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