Managing Employee Attendance
By Myra Creighton
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. **Types of Leave** *Continuous Period of Leave* If an employee is eligible for FMLA leave for a qualifying reason other than military caregiver leave, the employee is entitled to take twelve workweeks of continuous leave during a 12 month leave period but no more. If, however, an employee is not eligible for FMLA, has exhausted his FMLA leave, or the employee cannot return to work at the end of his FMLA leave because of a disability, an employer may be required to provide the employee with leave as a reasonable accommodation. Unlike the FMLA, the ADA does not specify the amount of leave an employer must provide. Rather, although one federal appellate court has said a request for one month of leave is not reasonable and other courts have suggested two years is not reasonable, a request for a finite period of continuous leave generally is reasonable and subject to the undue hardship analysis. Most employers are aware that cost can be an undue hardship but realistically, except for mom and pop companies, most employers will not be able to establish that a leave imposes financial undue hardship. Instead, employers should focus on the potential effect the employee's leave will have on his or her co-workers. The EEOC and the Tenth, Fifth and Eleventh Circuits have recognized that an undue hardship may result when an employer's coworkers have to work harder, more frequently or longer because of the employee's leave or if an employee cannot get his own work done because he is trying to handle the absent employee's job responsibilities. Therefore, employers should analyze these factors when deciding whether to grant an employee leave request. When an employee is on FMLA leave for his own serous health condition, it is a good idea to send him a letter about two weeks before the leave is exhausted indicating the last day of leave and inquiring whether the employee will be returning at the end of the leave. Although such a communication is not legally required, it is encouraged by the EEOC and looks much more reasonable to a potential jury than simply terminating an employee with a potential disability if he does not return and does not request an extension. Further, if an employee does not respond and indicate additional leave is needed and does not return to work, the employer can confidently terminate the employee under its no call, no show policy. As under the FMLA, the ADA requires an employer to hold an employee's job open during the leave as part of its reasonable accommodation obligation. If an employer cannot hold the employee's job open during the entire period of requested leave because doing so is an undue hardship, the employer must determine whether there is a vacant available position for which the employee is qualified, into which the employer can transfer the employee and hold until the employee is able to return. If there is not, the employer may terminate the employee. Importantly, like leave taken under the FMLA, continuous leave taken under the ADA as an accommodation may not be counted against the employee under the employer's attendance policy. Further, an employer with a maximum leave policy may be required to modify that policy and give an employee more leave as an accommodation. Of course, when a disabled employee requests leave or an extension of leave, an employer may require the employee to provide medical documentation supporting the need for continued leave and may inquire whether there is an accommodation that would allow the employee to continue working. If there is another accommodation that would allow the employee to continue working, under the ADA an employer may provide that accommodation rather than giving the employee leave. In contrast, under the FMLA, even if an employee could continue performing the essential functions of his position with an accommodation, he may choose to take FMLA leave instead. One type of continuous leave that is not a reasonable accommodation is indefinite leave. To be a reasonable accommodation, leave must enable the employee eventually to return to his or her job. Virtually every court to consider the question has held that a request for indefinite leave is not reasonable. Nonetheless, an employer may not assume that an employee requesting leave without providing a date of return, or requesting leave when the physician cannot provide immediately to provide a fixed date of return or the provision of an estimated date of return, is a request for indefinite leave. Medical treatment and recovery do not lend themselves to certainty so estimated dates of return are acceptable. Moreover, if a physician indicates an estimated date of return cannot be determined until the employee's next appointment, an employer is best served to grant leave until the next appointment if it is not an undue hardship and then ask for the estimated date of return. When an employee indicates that he does not know when he will be able to return to work, an employer has an obligation to engage in the interactive process to determine whether the leave requested is indefinite or not. The best practice is for the employer to either ask the employee to provide a note from his physician indicating an estimated return date or to make a medical inquiry to the employee's physician asking the physician to provide an estimated date of return. If the physician indicates that the leave is indefinite or that he simply has no clue when the employee will be able to return, an employer may consider the request as one for indefinite leave and terminate the employee. The best practice, however, would be to provide the employee with a month of leave (or the amount of leave available under the employer's maximum leave policy) and make another inquiry at the end of the leave granted. If the requesting employee is FMLA eligible, the employer should place the employee on FMLA leave. At the end of the FMLA leave, if the employee is unable to return to work, an inquiry concerning the amount of additional leave needed should be made to enable the employer to make a decision whether it is required to accommodate the employee. Another difficult situation that arises, particularly in the worker's compensation context, is the “defacto” indefinite leave request. Here, an employee provides a physician's note which states the physician saw the employee on a certain date and that the employee may return to work thirty days later. Thirty days later the employer receives another note from the physician stating the physician saw the employee on that day and that the employee will be able to return thirty days later. This pattern is repeated month after month with no indication of when the employee actually will be able to return to work. Several federal circuit courts have held that repeated extensions of a leave is not reasonable and that an employer is not required to give multiple extensions of leave. Moreover, the EEOC's Fact Sheet on Applying Performance and Conduct Standards indicates that an employer is permitted to ask a treating physician why the first estimated date of return was wrong and why he thinks the employee will be able to return at the end of the requested extension. The answers to such inquiries sometimes will show the physician has no idea when the employee will be able to return. The best practice in this situation may vary depending on the length of the initial leave and the requested extension. If the requested extensions are short, e.g., two weeks, the employer probably should make the inquiry to the physician after the employer has received a third request for extension. If the first leave was lengthy and an extension is requested, e.g., if an employer gives an employee six months of leave, but then at the end of six months the employee requests three more months of leave, the time to make the inquiry (or if an employee is not eligible for FMLA) would be upon receipt of the first requested extension. *Reduced Workweek* An FMLA eligible employee is entitled to a reduced workweek as long as the employee has FMLA leave available. For example, an employee may need to reduce his forty-hour workweek to thirty hours a week. In that case, the employee will be using ten hours of FMLA leave a week. Again, once the FMLA leave is exhausted it may be a reasonable accommodation to continue the reduced workweek for a finite period of time. A request for a permanently reduced workweek, however, is not a reasonable accommodation if the number of hours worked is an essential job function because an employer never has to eliminate an essential function to accommodate an employee. Moreover, like other accommodations, the request does not have to be granted if the accommodation is an undue hardship. *Intermittent Leave* Under the FMLA, eligible employees may take leave intermittently - whether foreseeable or unforeseeable. This means an employee can erratically and unpredictably miss up to 60 days of work a year without being terminated for absenteeism. This aspect of FMLA protection is the one most likely to cause managers to call Human Resources and beg to terminate an employee. Therefore, it is very imperative that an employer to use every right it has under the FMLA to control intermittent leave and prevent abuse. First, employers should require employees seeking FMLA leave to provide a completed healthcare provider certification. In the case of an employee requesting intermittent leave for a chronic serious health condition, e.g., diabetes, migraine headaches, depression, an employer should make sure that the healthcare provider answers a question concerning the estimated frequency and duration of incapacity. This information will serve as a baseline to monitor an employee's leave usage. If the healthcare provider does not answer this inquiry, an employer should return the certification to the employee indicating it is insufficient based on the provider's failure to provide the information, and give the employee seven days to cure the insufficiency. Second, the employer should track the frequency and duration of an employee's leave usage (whether for himself or to care for the family member with a chronic serious health condition) to make sure it is reasonably consistent with the healthcare provider's estimate. If an employer sees a pattern of escalating usage over a period of months, e.g., the physician indicated the employee would miss two days a month and the employee has missed six days a month the last three months, or if the employer notices a suspicious usage pattern, e.g., Monday and Friday or always in connection with a holiday or scheduled time off, the employer should send a letter to the healthcare provider indicating the escalation of absences or absence pattern and inquire whether it is consistent with the employee's need for leave. Third, employers should require substitution of paid leave. Fourth, an employer should have a call out policy for tardies and absences that require the employee to contact a supervisor or manager by telephone a set period of time before he is scheduled to work if he will be absent or be late and enforce the policy. An employer may deny FMLA protection to an employee who fails to follow the policy when no unusual circumstances prevented him from doing so. Before denying protection, however, an employer should ask why the employee why he failed to comply to ensure no unusual circumstances exist and memorialize the employee's explanation. Unlike the FMLA, the ADA does not require employers to accommodate erratic unpredictable attendance. Virtually every court to consider this question has stated that reliable, predictable attendance can be an essential function, which an employer is not required to eliminate as a reasonable accommodation. Indeed, most courts have held that a disabled employee with erratic, unreliable attendance is not otherwise qualified for the position. Even the EEOC has acknowledged in its Fact Sheet on Conduct and Performance Standards that an employer is not required to exempt employees from time and attendance requirements. Nevertheless, the EEOC has taken the position that absent undue hardship an employer must excuse an absence or modify its attendance policy to accommodate a disabled employee predictably missing work because of a disability. For example, if an employee needs treatment every Friday for four months, not counting the absence against the employee under the attendance policy may be a reasonable accommodation. In making a decision whether to count such absences against the employee one fact to consider is whether the employee gave adequate notice that he would have to leave or be absent for an appointment or whether the employee simply missed worked and failed to comply with relevant policies. Managing attendance and leave issues can be a potential minefield of liability under the ADA and FMLA but employers can take a number of steps to reduce their potential liability. Specifically, employers should make sure that their policies comply with both laws and state that they will be administered in compliance with those laws. Employers should also train supervisors to have a clear understanding of the company's obligations under both laws and should train mangers to drive leave requests and attendance issues to Human Resources to allow for centralized decision-making in response to leave requests, attendance issues, and application of relevant policies. Further, employers should utilize all their available rights under the FMLA to manage and control unpredictable intermittent leave usage.
