A no-fault attendance policy typically assesses points for various attendance infractions without regard to the reason for the absence. Employees who accumulate certain numbers of points are disciplined. No-fault attendance policies usually include limited exceptions, such as FMLA.
No-fault attendance policies have some advantages. They are relatively easy to administer and theoretically reduce or eliminate the possibility of discrimination by treating all absences in each category and all resulting attendance violations the same. The point thresholds where employees receive discipline are designed to accommodate “normal” absenteeism and prevent “excessive” absenteeism.
It is well-established that the ADA can impact employers’ attendance and leave of absence policies. For example, the ADA can require employers to offer leaves of absence to enable an employee to recover from a disability that prevents the employee from performing the essential functions of the job and cannot otherwise be accommodated (such as by a transfer to a vacant position). A leave of absence as a reasonable accommodation need not be indefinite, but attempts to set a rigid limit on such a leave of absence can be legally problematic. The EEOC believes that policies that establish a fixed leave of absence after which employees will be discharged if they are unable to return to work violate the ADA because the ADA may require the employer to “accommodate” an absence caused by a disability that extends beyond the fixed limit. Although this EEOC position is illogical because the leave of absence itself is an accommodation so the reasonableness assessment should be based on the duration of the offered leave instead of its fixed nature, the EEOC has filed class actions challenging such policies against several large employers and reached seven figure settlements in certain cases.
Until recently, the conventional wisdom has been that the ADA does not require an employer to accommodate sporadic, unpredictable absences even if those absences are caused by an employee’s disability. Courts have routinely found that regular, predictable attendance is an essential function of most jobs and that unpredictable absences need not be accommodated under the ADA.1 Employers have won numerous lawsuits where the plaintiffs claimed that sporadic absences caused by a disability should not have any negative consequences. For example, the 6th Circuit just last year found that an employer did not have to offer telecommuting to accommodate an employee whose disability resulted in sporadic, unpredictable absences because the employee’s job required face to face interaction as an essential job function. EEOC v. Ford Motor Co., 782 F.3d 753 (6th Cir. 2015) (en banc).
Despite this long-standing “general rule,” the EEOC is currently challenging a no-fault attendance policy. EEOC v. AutoZone, Inc., No. 14-cv-3385 (N.D. Illinois). In this case, the EEOC claimed AutoZone’s no-fault attendance policy violated the ADA when it “failed to make reasonable accommodations to the disabilities of the Aggrieved Individuals [employees] at its retail stores…by refusing to make exceptions to a ‘no fault’ attendance policy for their disability-related absences, and discharged them as a result….” According to the EEOC, AutoZone refused to “excuse a reasonable number of disability-related absences.” As a result, “Aggrieved Individuals with even a modest number of disability-related absences were discharged,” and these individuals would not have been discharged but for their unexcused disability-related absences. AutoZone remains pending and no decision in the case is expected for some time.
On Nov. 5, 2015, the EEOC reached a $1.7 million settlement in a separate matter involving Pactiv LLC, another Illinois employer. The agreement resulted from an investigation where the EEOC concluded that Pactiv violated the ADA by disciplining and discharging disabled employees according to its national policies involving: (1) issuing attendance “points” for medical-related absences; (2) not allowing intermittent leave as a reasonable accommodation; and (3) not allowing leave or an extension of leave as a reasonable accommodation. The assertion that intermittent leave could be required as a reasonable accommodation under the ADA is ominous.
Employers with no-fault attendance policies should review their job descriptions to ensure that regular, predictable attendance is indeed an essential job function. If an employee asks for an accommodation, employers should engage in the familiar “interactive process.” Employers need not necessarily accommodate sporadic absences for employees with a disability that causes such absences, but it is risky to reject such accommodation requests out of hand without any analysis and reckless to do so without at least engaging in the interactive process. In the meantime, we will monitor the AutoZone case and other related developments.