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Under a “no-fault” attendance policy, an employee accrues one point per absence, regardless of the reason for the absence. After an employee accumulates a pre-designated number of absences, the employee is usually subject to increasing levels of discipline (a “progressive disciplinary policy”), ending with termination.

These policies are often used by large companies that do not want to expend time or resources determining how to assess points to each absence accrued by each employee. While that makes sense from a monetary standpoint, these policies also have significant risks.

Most importantly, points cannot be assessed for absences that fall under the Family and Medical Leave Act or the Americans with Disabilities Act.

Here’s an example that shows how the FMLA and ADA can both come into play: Employee is experiencing attendance issues. She has already received a verbal warning and a written warning after accruing the necessary number of points.

Employee sees her treating physician, who diagnoses her with severe depression and prescribes medications. Employer approves Employee for intermittent FMLA leave (pre-approved leave that covers sporadic flare-ups of her depression’s symptoms and doctor’s appointments). Employee continues accruing absences (absences not covered by the FMLA) and is suspended. Employer informs Employee that if she incurs one more “unexcused” absence, and thus accrues one more point, she will be fired. Employee experiences severe depressive episode, incapacitating her for three days. She invokes the FMLA on the first day and the third day, but fails to invoke the FMLA on the second day. Employer terminates Employee because of the second day because the absence was not excused by the FMLA.

While Employer’s termination of Employee is not illegal under the FMLA, it violated the ADA. The reason is that the absence was attributable to her disability – it was caused by her depression. Therefore, by terminating Employee based on that absence, Employer technically and legally terminated Employee based on her disability.

The point here is that if your company has a no-fault attendance policy, which is fine to do, there must be exceptions for FMLA and ADA related reasons for absences. Failing to do so or failing to apply the policy correctly can and will lead to liability.

Do you have a no-fault attendance policy? Tell us about it!

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