The U.S. Department of Labor has announced it will begin exploring more rigorous enforcement of employer policies that may systemically violate the FMLA. No-fault attendance programs fit in that category. They may also violate the ADA.
No-fault attendance programs were designed to be completely objective, the idea being that all absences and therefore all workers are treated equally. In theory, equal treatment means no discrimination.
Because the FMLA and ADA require employers to know why an employee was absent, the no-fault “hear no evil” approach cannot work.
The EEOC made its position abundantly clear recently when it required an Illinois manufacturer to pay $1.7 million in penalties for a no-fault attendance program that illegally punished disabled employees for taking time off. The ADA bars any kind of retaliation for requesting or receiving a reasonable accommodation.
How to comply
Start by examining your attendance policy. Most no-fault attendance policies assign points to absences or allow a certain number of absences within a given time period—for example, five absences in six months. The no-fault or point system’s appeal for employers lies in its ease of operation. Managers simply note whether the employee showed up for work or called off.
The FMLA and ADA require employers to dig deeper. If the employer does not know the reason for the employee’s absence, then it could spell trouble down the road. If the person taking the call does not ask the reason for the absence, the employer lacks the information to determine if the absence should be a chargeable absence under the point system or FMLA- or ADA-eligible.
Knowing why worker is absent
Employers need to know why an employee is calling off, not to be nosy or controlling, but ultimately to protect the employee’s rights.
Under the ADA, employees must notify the employer if they require an accommodation. Employers suggesting that employees are disabled or need an accommodation run the risk of regarding the employee as disabled when he or she is not.
Still, documenting the reason for the absence gives the employer valuable information should the employee request an accommodation, such as time off or a flexible schedule. Employers can retroactively designate an absence as excused if it becomes clear later that the absence was related to the employee’s disability.
Knowing the reason for the absence allows the employer to designate the absence as FMLA leave or not. An employer can provide the employee with a statement that the absence is not considered FMLA leave either because the employee is not eligible or because it was not due to an FMLA-qualifying reason.
FMLA, ADA housekeeping
Close scrutiny of no-fault attendance policies from federal agencies means you need to have your house in order.
- First, ensure all FMLA and ADA posters are up-to-date. Also make sure FMLA leave request and medical certification forms are current.
- Make sure all records of hours worked, accommodation requests and leave requests are current.
- Review your FMLA policy with your attorney to ensure it complies with the latest court decisions and regulators’ actions.
- Finally, make sure supervisors know how to handle FMLA leave and ADA accommodation requests.
