It’s flu season again, and this year seems worse than ever. In fact, the CDC has said that the flu outbreak has reached the epidemic threshold. With the flu vaccine only 62% effective, it seems like no one is safe. So what does that mean for employers? Well, the CDC reports that the flu will cost businesses nearly $10.5 billion in direct costs for hospitalizations and outpatient visits. And that number doesn’t include other costs like sick pay, work delays, and lost productivity. It’s no surprise that employers are asking about the best way to handle sick leave for employees, but you might be surprised to hear that the answer isn’t a one size fits all attendance policy.

Employers are told time and time again that they need to treat all employees alike, so a straightforward, no-fault attendance policy would seem to be the answer. Under no-fault attendance policies, all absences are treated the same, and employees who reach a pre-designated number of absences are terminated, regardless of the reason. What could possibly go wrong? Well, certain statutes, like the Family and Medical Leave Act (“FMLA”) and the Americans with Disabilities Act (“ADA”), restrict an employer’s ability to penalize employees for their absences, and a no-fault attendance policy can do just that.

Take, for example, an employee who is often a minute or two late to work because of his disability. If your no-fault attendance policy penalizes his tardiness without taking his disability into account, he may have a claim under the ADA. That is precisely what happened in Holly v. Clairson Industries. In that case, the employer instituted a no-fault attendance policy, which provided that any employee who accumulated 18 tardies would be terminated. Holly, a paraplegic employee, was terminated after he was tardy on 18 occasions in the course of 6 months. On the majority of the occasions, Holly was late by only one minute.

After he was terminated, Holly sued his former employer under the ADA. Even though the trial court dismissed his case, the Eleventh Circuit Court of Appeals overturned that dismissal and found that Holly had a valid case under the ADA. Importantly, the court noted that an employer is not protected from liability under the ADA merely because it treats disabled and non-disabled employees the same. The court stated: “the very purpose of reasonable accommodation laws is to require employers to treat disabled individuals differently in some circumstances–namely, when different treatment would allow a disabled individual to perform the essential functions of his position by accommodating his disability without posing an undue hardship on the employer.”

A uniform approach to FMLA Leave can also be problematic. Under the FMLA, covered employees are entitled to 12 weeks of unpaid leave in a 12-month period for specified family and medical reasons. Under their no-fault attendance policies, some employers automatically terminate employees who do not return to work at the end of their FMLA Leave. The Equal Employment Opportunity Commission (“EEOC”), however, has been cracking down on this approach, instead requiring employers to perform an individualized inquiry on a case-by-case basis to determine whether additional leave, if requested, may be a reasonable accommodation. In fact, last year, the EEOC filed a lawsuit in federal court in Maryland against Home Depot for its alleged failure to provide leave to a cashier with cancer as a reasonable accommodation. In September 2012, the EEOC reported that Home Depot agreed to pay $100,000 to settle this lawsuit.

Companies should review their attendance policy with legal counsel to make sure they are avoiding these and other potential pitfalls. Have a question about your company’s attendance policy? Contact one of the attorneys on our Labor & Employment team so they can review your policy for compliance with state and federal laws.