Although much of the U.S. workforce is increasingly teleworking in the midst of the Covid-19 pandemic, when employers return to business as usual, handling employee absences and leaves will continue to be a challenging issue. Regardless of setting, reliability almost always matters.  In recent years, the EEOC has scrutinized and challenged employers’ leave and attendance policies, and ADA issues continue to be an enforcement priority for the agency.

Many employers implement “no fault” attendance policies to manage attendance in the workplace. Under these policies, employees receive “points” or “occurrences” for absences, and employment is terminated after employees exceed the maximum allotted absences, regardless of the reason for the absence. Employers must be cautious, however, to consider exceptions that may be warranted under the ADA, the FMLA, or other state and local law.  The EEOC takes the position that such policies violate the ADA, and has repeatedly challenged these policies by bringing charges of discrimination and lawsuits against employers.

This month, an employer prevailed on summary judgment over claims brought by the EEOC alleging that the company violated the ADA after terminating the employment of an individual with too many absences under the company’s no-fault attendance policy.  The “absence” of a compelling argument in favor of accommodating this employee’s unreliability doomed the EEOC’s case.

EEOC v. Austal: Factual Background

In EEOC v. Austal USA, LLC,¹ the charging party employee began working for the company in 2007 in a logistics position. The position required him to inspect inventory and deliver materials – all work necessitating physical presence at the facility. The employee was diagnosed with diabetes, and his condition caused him to miss work on an unpredictable and intermittent basis.

Under the company’s attendance policy, employees who had eight “occurrences” in a rolling 12-month period were terminated from employment. The policy also contained a progressive discipline system: a verbal warning (four occurrences), written warning (six occurrences), and final warning (seven occurrences). The policy also provided that an employee could use up to five doctors’ notes to excuse absences due to personal illness, and those absences would not count as occurrences under the policy.  The company also did not count absences covered under the Family and Medical Leave Act (FMLA).

The employee’s job ended after he had exhausted FMLA leave and paid time off (pursuant to company policy), and then exceeded the number of absences he was allotted under the attendance policy.

The Court’s Ruling: Employer Prevails

The EEOC sued on the former employee’s behalf, and the company moved for summary judgment. In that motion, the company argued that the employee was no longer a qualified individual with a disability because he could not perform the essential job function of attending work regularly. It was undisputed that the employee had to be at work to perform his job; the court therefore agreed that attendance was an essential function of the position.

In response, the EEOC contended that the company should have provided additional medical leave to the employee as a reasonable accommodation. The court rejected this argument, explaining that additional leave would not resolve the issue. The employee’s absences were unpredictable in nature, and he could not follow any work schedule on a regular basis. For that reason, modifying his hours or reducing them would not be effective in allowing him to perform the essential functions of the job. In addition, the employee’s unpredictable absences were likely to be permanent.  If he had been capable of returning to work on a regular basis after a definite amount of time, a different result may have occurred. Accordingly, the court granted summary judgment for the employer.

Takeaways for Employers

Do rulings of this nature mean that employers need not worry about challenges to their attendance policies? 

No.

Although there is a trend in courts favoring employers in cases involving no-fault or points-based attendance policies, and pushing back against the concept of “indefinite” or unpredictable leave as an accommodation, the EEOC (and private plaintiffs) will continue to challenge these policies in discrimination charges and, potentially, litigation. Rulings of this nature have not stopped the EEOC from moving forward and finding cause against employers or filing new lawsuits.  The Commission has persevered even in the face of this recent loss.  While employers have prevailed in obtaining dismissal in some of these cases, other lawsuits have resulted in consent decrees with affirmative requirements and/or financial settlement.

A no-fault attendance policy can simplify attendance discipline, but it carries some risk for employers when it comes to absences that arguably may be protected by the ADA, FMLA, and/or state and local law. This remains an issue where individualized assessment is required to determine if a modification to a no-fault attendance policy would be a reasonable accommodation before discipline is assessed. Employers should closely review their policies and the actual implementation of those policies to ensure compliance with current legal obligations, and should review discipline terminations under these policies on a case-by-case basis – paying special attention to the question of how much unreliability is too much unreliability.  It will vary based on the job requirements, the individual’s attendance record and prognosis for improving reliability, and the possibility of alternative accommodations.