Managing Employee Attendance
By Myra Creighton Partner, Fisher & Phillips LLP | October 28, 2012
Managing employee attendance has become an increasingly complicated and risky task for employers. Long gone are the days when an employer confidentially could administer a "no fault" attendance and maximum leave policies with little, if any risk. The Family and Medical Leave Act ("FMLA") imposed the first restriction on such policies but employers soon learned not to count FMLA=qualifying leave as absences.
Many employers, however, never considered that the Americans with Disabilities Act ("ADA") might possibly require them to modify their attendance and leave policies to accommodate disabled employees. Indeed, the obligation to do was counterintuitive to companies trained to uniformly and neutrally apply policies to employees. Unfortunately, the advent of two of the hottest EEOC enforcement trends have taught employers that treating everyone equally can violate the ADA. Specifically, the EEOC has pursued cases against employers for inflexible leave policies, counting disability-related absences under the company's no-fault attendance policy, automatically terminating employee's who could not return to work after they had exhausted FMLA leave for their own serious health condition, and for policies prohibiting reduced work schedules. The EEOC obtained some of its largest settlements in these cases and put employers on notice that a failure to modify policies as an accommodation could result in a class action lawsuit under the ADA. Such cases should cause employers to use extreme caution when dealing with leave and attendance issues.
A. The Relevant Laws
The ADA and the FMLA (as well as state disability and leave laws) significantly effect an employer's management of employee attendance. Though the two laws may overlap, both must be considered independently when attendance and leave issues arise. An employer could easily violate one while complying with the other. Consequently, an employer should provide train its supervisors to recognize requests for leave implicating either law and should address attendance and leave issues from a centralized decision making source to ensure consistent application of and possible accommodation of relevant company policies.
The FMLA entitles eligible employees to 12 workweeks of job protected leave in a 12 month period for certain qualifying reasons, which include the employee's own serious health condition, to care for an immediate family member with a serious health condition, the birth or placement of a child for adoption or foster care, and qualifying exigency leave. Eligible employees are entitled to 26 workweeks of job protected leave for military caregiver leave, which gives employees twenty-six workweeks of leave. Moreover, when medically necessary, employees can take certain FMLA leaves intermittently or on a reduced schedule basis. Employees are entitled to this time regardless of whether the leave imposes an undue hardship on an employer.
The ADA prohibits employers from discriminating against employees based on their disability and requires employers to reasonably accommodate disabled employee unless doing so is an undue hardship. The ADA Amendments Act's broad definition of disability has vastly expanded the universe of employees potentially entitled to a reasonable accommodation. For example, pregnancy is not an impairment. If, however, a pregnant employee needs time off work because of a pregnancy-related impairment, e.g., incompetent cervix, the employee may be entitled to a leave as an accommodation or not having an absence for treatment of the impairment excused under the attendance policy as reasonable accommodation.