In managing employee attendance, be careful about policies that suggest automatic termination after a certain number of absences as the Equal Employment Opportunity Commission (EEOC) believes such policies violate the Americans with Disabilities Act (ADA). The EEOC has filed suit against Wayne Farms, a poultry plant, alleging the company’s attendance policy, which allegedly required the mandatory termination of an employee who accumulated more than 9 occurrences in 12 months violated the ADA.

The Alleged Facts.

Although the case is filed as a purported class action, the allegations center around two employees, Latonya Hodges and Salvadora Roman. The Complaint alleges that Hodges missed work because of her asthma and was ultimately terminated under the attendance policy in 2011. The Complaint also mentions Salvadora Roman, an employee who missed work because of her Carpal Tunnel Syndrome and quit coming to work in 2012 after she hit 10 occurrences (assuming she was terminated). According to the Complaint, Wayne Farms should have offered both employees “flexibility in its attendance policy or other reasonable accommodations”, including leave or transfers.

The EEOC alleges that Wayne Farm’s attendance policy applies “to all absences, including absences caused by an employee’s disability unless the employee is granted leave under the Family Medical Leave Act (FMLA) or is granted leave for holidays, pre-approved vacations, death in the immediate family, court subpoena as a witness, jury duty, pre-approved medical leave of absence, military leave, worker’s compensation disability, pre-approved personal leave and pre-approved appointments with Government agencies.” The EEOC claims that once an employee accrues ten absences within a year, even if the employee has an excuse that the absence was related to a disability, that employee is automatically terminated under Wayne Farms’ policy. According to the EEOC’s reading of the policy, it “in effect, acts as a qualification standard, employment test or other selection criteria that screens out or tends to screen out individuals with disabilities and is not job-related or consistent with business necessary, in violation of” the ADA.

Of course, we have not heard Wayne Farms’ response, although it apparently wonders why the EEOC is only now pursuing a matter first raised nearly five years ago. In a news report, the Company stated that it is “completely confident that management met all legal and contract obligations” to the employees and mentioned that neither employee raised issues under the union contract. The Company intends to vigorously defend the action.

What You Can Do in the Meantime.

Given the EEOC’s focus on Wayne Farms’ attendance policy, employers with strict attendance policies, particularly those with point levels, should look closely at their policies. Consider deleting language that suggests an employee will “automatically be terminated” or other inflexibility. Although supervisors want bright lines, the law does not permit them. The ADA requires employers to consider the facts of each case and, in some instances, provide leave as a reasonable accommodation.