As you know, the EEOC has been attacking maximum leave provisions in leave of absence policies for quite some time. According to the EEOC, maximum leave provisions violate the ADA. See http://blogs.duanemorrisinstitute.com/jsegal/date/201101
Now, the EEOC is going after attendance control policies. Recent $20 million settlement with Verizon for not excluding absences covered by the ADA from its no fault attendance control plan. See http://www.eeoc.gov/eeoc/newsroom/release/7-6-11a.cfm
Employers need to take a look at their attendance control policies and consider adding a specific exclusion for absences covered by the ADA and then reviewing each absence to make sure none for which points are awarded is covered by ADA.
Employers who don’t have a no-fault point system but rather have general policies on absenteeism also need to be careful to exclude any absences potentially covered by the ADA before concluding absenteeism is excessive. The employer may wish to document what absences it has considered—and which it did not—so that the employer can demonstrate to the EEOC or a court that it did not consider “protected” absences.