“No Fault” Attendance Policies Must be Managed

by Michael Haberman on August 16, 2018 · 0 comments


Make sure your attendance policy is well written and covers ADA and FMLA absences.

A lot of companies like to use “no-fault” attendance policies because they are easier to administer, generally easy to understand, reduces the chances of favoritism, doesn’t require a lot of policing of reasons for absences and treats the employees as adults by making them responsible for their actions. If only it was really that easy HR’s job might be a bit easier. There are some situations that require attention and decision-making, that if missed, may cost the organization both money and unwanted governmental attention.

Not all absences are equal

I have frequently told clients and students that treating everyone exactly the same is a road to “bad HR.” Treating all absences as exactly the same actually violates federal law under the Americans with Disabilities Act (ADA and ADAAA) and the Family and Medical Leave Act. An employer has an obligation to pay attention to situations that may trigger a different response to an absence. It is important to remember that these triggers do not have to be the official words of “accommodation” or “FMLA request” in order to potentially be covered. As Suzanne Newcomb of SmithAmundsen LLC points out:

Anything that alerts or should have alerted the employer that an employee has a disability and may need reasonable accommodation (or that absences may qualify for FMLA protection) triggers statutory obligations. And to further complicate matters, anything a supervisory employee knows can be imputed to the employer.

Rather than a no-fault policy relieving a supervisor of the need to make decisions, it actually requires training supervisors to be attentive to triggers, either words or actions, that require more attention to an employee rather than less.

Costly mistake

Newcomb wrote about a company that made just such a mistake. The EEOC got involved and a consent decree was issued that made amends for what was termed “systemic disability discrimination.” According to Newcomb:

Pursuant to the terms of the decree, the employer will pay $1 million, reinstate affected employees, appoint an ADA coordinator, revise its policies and procedures, track accommodation requests, maintain an accommodation log, provide ADA training to all of its employees, and report its progress to the EEOC over the next two and a half years.

That is a pretty stiff penalty, not only in cash but in the burden of other work, and the amount of time the company must be monitored by the EEOC.

How to manage

Newcomb offers advice that echoes the advice I give to clients and students. This advice includes:

  1. Regularly review your ADA and FMLA policies to make sure they are clear, concise and easily understood;
  2. Clearly direct employees to contact HR if they believe they need leave or reasonable accommodation for a disability;
  3. Clarify that your attendance and leave policies (and others as appropriate) are applied within the framework of the ADA and FMLA and again invite employees who believe they may need leave or an accommodation to discuss the issue with HR;
  4. Include FMLA and ADA issues in regular supervisor training and require supervisors to elevate potential issues to HR; and

She also suggests you have a good attorney on hand to be able to navigate the hard twists and turns that may develop.

Following this advice may keep you out of harm’s way as you administer your no-fault policy.


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