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No-Fault Attendance Policies Create Exposure

The U.S. Equal Employment Opportunity Commission (EEOC) sued a Memphis-based metal goods manufacturer over its 180-day, no fault attendance policy. The EEOC alleged the policy violated the Americans with Disabilities Act (ADA). The employer will pay one million dollars to settle the lawsuit.

According to the lawsuit, the employer violated the ADA by terminating, or failing to accommodate, workers with disabilities who needed to take more than 180 days off from work - the number of days the employer's policy allowed each year. The EEOC takes the position that all no-fault attendance policies that are enforced without regard to reasonable accommodations can violate the ADA.

Per the terms of the consent decree, the employer will reinstate the affected employees; assign an ADA coordinator; include a complaint procedure in its revised policies and procedures; create and maintain an accommodation log; and post notices to employees about the log. The employer will also train all employees on the ADA, develop a centralized tracking system for ADA accommodation requests, and submit annual reports to the EEOC. Kathryn Moody and Valerie Bolden-Barrett "Manufacturer pays $1M for 180-day, no fault attendance policy" (Jul. 20, 2018).

Commentary and Checklist

Attendance policies may seem like a good idea—after all, family employers need staff to come to work. However, no-fault attendance policies are a problem and very risky, no matter how few employees you employ.

A no-fault attendance policy mandates termination after a certain number of absences.

Instead, of "no-fault", your attendance policy should state that termination "may result" depending on the circumstances of the absence. Make sure your policy allows for an individual assessment of all requests for leave.

For staff members with certain disabilities, an appropriate reasonable accommodation could be additional leave time. When a staff member asks for a reasonable accommodation for a disability, family employers must engage in an interactive process with the staff member, his or her physician, and perhaps a workplace accommodation expert. Through the interactive process, an appropriate accommodation can be determined. Accommodations are always determined on a case-by-case basis.

Many employers now provide flexible and modified work schedules as a benefit to all workers, not only those with disabilities. Giving staff the opportunity to perform tasks from home that do not require then being at the workplace or working with staff to create a schedule that fits their needs as well as yours, will help you attract applicants and hire the best staff.

Here are some additional tips for addressing a staff member's request for a reasonable accommodation:

  • Have a written job description for each position. Make sure the essential functions are clearly delineated. Make sure, for repetitive tasks, that the number of repetitions per work shift is included, along with the circumstances. For example, "must be able to ascend and descend a flight of 15 stairs" becomes a much different task when coupled with the words "at least eight times per hour of work while carrying boxes weighing between 30 and 50 lbs."
  • Failure to engage in the interactive process is a violation of the ADA, even if, ultimately, there is no reasonable accommodation available.
  • Train managers and supervisors to listen for informal requests for reasonable accommodation, including additional leave time. An employee need not use the word "accommodation" to trigger a request and a family employer's response. Make sure your management staff know how to notify the person authorized to manage such requests.
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