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Time to Review Your No-fault Attendance Policy and FMLA Policy

If your company is subject to the Americans with Disabilities Act (ADA) or the Family and Medical Leave Act (FMLA), it’s time to review your attendance policy and FMLA policy. If your company has a no-fault attendance policy, and the policy does not allow for an excused absence for reasons related to a disability (or for FMLA leave), your company could face a claim under the ADA for failure to accommodate. Similarly, if your company has an FMLA policy that requires an employee to return after 12 weeks of leave, with no exceptions for additional days off, your company could also face a failure to accommodate claim. The Equal Employment Opportunity Commission has been taking action on these two issues, so it is important that companies act now to review and possibly revise their policies.

No-fault attendance policy

If your company has a no-fault attendance policy, all absences are treated the same – they count as unexcused. It does not matter whether the employee is absent for a good reason, a bad reason, or no reason – they all count as absences under a no-fault attendance policy. The problem is that some employers may mistakenly treat an absence occasioned by the FMLA as an absence under a no-fault attendance policy. Make sure your company does not do this and that all absences related to FMLA leave are unexcused and the employee is not penalized. Similarly, there may be occasions when an employee needs extra time off to accommodate a disability. Make sure your no-fault attendance policy is sufficiently flexible so that if an employee needs extra time off as a reasonable accommodation, they are not penalized for the absence under the no-fault attendance policy.

Practical solutions

  • Ensure that written policies allow for the excusing of absences under the ADA and the FMLA.
  • Ensure that Human Resources tracks the reasons for occasional absences – it may be time to speak to the employee about a reasonable accommodation.
  • Train managers and supervisors to properly report the reasons why employees are late or absent.
  • Confirm that FMLA-protected and ADA-protected absences are not counted against employees in performance reviews.

FMLA policy

The EEOC has repeatedly indicated its belief that inflexible leave policies that do not permit days off beyond FMLA leave may be illegal. For example, if the company’s FMLA leave policy states that employees will be terminated if they do not return to work after 12 consecutive weeks of leave, this language could be interpreted as not allowing for additional days off as a reasonable accommodation under the ADA, which the EEOC could view as a failure to accommodate. Make sure your FMLA policy and practice contain sufficient flexibility by incorporating the changes below.

Practical solutions

  • Ensure that written policies communicate a willingness to consider additional leave, when appropriate, as a potential accommodation under the ADA.
  • Remember to consider your company’s ADA obligations before, during and after FMLA eligibility.
  • Don’t forget about ADA-covered employees on leave: develop documentation to show that you considered return-to-work options/reasonable accommodations throughout their leave period.

If you have questions about your company’s no-fault attendance policy or FMLA policy, please contact a member of Bingham Greenebaum Doll LLP’s Labor and Employment Practice Group.

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