Many employers have no-fault attendance policies that subject employees to discipline for too many absences, without considering the reason for the absence. Some employers enforce absence “caps” and terminate employment after a fixed duration of absence, regardless of the reason for the absence. Such policies violate the Americans with Disabilities Act, says the Equal Employment Opportunity Commission.

In June 2011, the EEOC held a public hearing on the issue of unpaid leave as a reasonable accommodation under the ADA. At the hearing, the EEOC stated that infl exible attendance policies violate the ADA because employers must consider whether additional time off would be a reasonable accommodation of an employee’s disability. Thus, for example, an employer may not simply terminate an employee with a disability for failing to return from FMLA leave but must fi rst have a dialogue with the employee to determine whether some additional time off would be reasonable and not an undue hardship on the employer. The EEOC also warned that use of third-party administrators to handle leave issues is a dangerous practice because the third party often does not understand the employer’s workforce and needs and cannot accurately engage in the individualized assessment required by the ADA. (For more details of the hearing, go to http://www.eeoc. gov/eeoc/meetings/6-8-11/index.cfm.)  

The EEOC is also suing employers over no-fault attendance policies. The agency recently announced a $20 million settlement with Verizon Communications over its policy, the largest disability discrimination settlement in a single lawsuit in EEOC history. Under Verizon’s policy, employees were subject to discipline if they accumulated a certain number of “chargeable” absences. However, the policy did not exclude absences that were caused by a disability or consider whether some or all of the absences should be allowed as a reasonable accommodation of the disability. Earlier this summer the EEOC entered into two other multi-million dollar settlements also involving infl exible leave policies and the employer’s failure to enter into the interactive process at the end of the leave period. In short, no-fault attendance polices can be costly.  

The EEOC suggested in its June hearing that it might issue new guidance on this issue or consolidate its existing guidance. Until then, employers may look to existing agency publications and judicial decisions, such as EEOC Enforcement Guidance: Reasonable Accommodation and Undue Hardship Under the Americans with Disabilities Act (10/17/02) and Taylor v. Pepsi-Cola, 196 F.3d 1106 (10th Cir. 1999). Although no bright-line rules exist, helpful principles include the following:

  • Unpaid time off can be a reasonable accommodation of a disability under the ADA.
  • The ADA’s duty of reasonable accommodation may require more time off than the Family and Medical Leave Act provides.
  • Before disciplining or discharging an employee for an absence due to a disability, the employer should engage in dialogue with the employee regarding the expected date of return to employment and then make an individualized assessment as to whether some additional amount of time off would be a reasonable accommodation of the disability.
  • Leave of unspecifi ed or indefi nite duration is usually not required as an accommodation.
  • Leave as an accommodation may be denied or terminated once it becomes “unreasonable” in duration.