At Fault with No Fault Attendance Policies

A recent article at jdspura.com from Baker Ober Health Law (“Faulty Issues with No Fault Attendance Policies”) shared that several of their clients have a ‘no fault attendance’ policy whereby employees are assessed either a point or half point for each tardy, absence or leaving their shift early.  After a set number if points, an employee may be terminated or disciplined regardless of the reason for the absence.

It turns out, per the article, many untrained supervisors had been inaccurately assessing points, even in cases of an employee’s serious health condition, a violation of the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA).  This accounts for a rise in the Equal Employment Opportunity Commission (EEOC) charges in cases of wrongful termination.

Notably, the EEOC began a nationwide class action suit against Verizon, alleging ADA violations and failing to accommodate employees with disabilities and for terminating or discipling employees.  The costly result was a $20 million-dollar lawsuit.

Within an organization, problems arise when a reported absence is conveyed to the wrong staff person, such as an untrained supervisor, rather than human resources (HR).  Ideally, HR professionals should track absences and assess points to confirm if the reason for absence qualifies under FMLA or ADA.  When this is neither possible nor practical, further training of supervisors is imperative.  If attendance points are assessed for a health-related issue without regard to employee circumstances, it may lead to litigation advises the article.

By including provisions in their no-fault attendance policies, employers may avoid liability.  Likewise, training supervisors to contact HR or better recognize FMLA and ADA qualifying absences can help.  The article goes on to suggest employers should expand job descriptions to emphasize regular attendance is key to every employee’s success.

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