August 2014 HR Brain Teaser

Brain Teaser Courtesy of EPLI Pro™

No-Fault Attendance Policy

You have a no-fault attendance policy where employees accrue points for absences. If they rack up too many points, no matter the reason, it will lead to disciplinary action up to and including termination. You treat everyone the same, so there is no problem with this policy, right?

What do you think?

A.  No problem here. You must treat employees the same to ensure there is no appearance of discrimination, so it is really the best policy to have.

B.  It is a fair policy. Employees need to be at work and you need a way to motivate them to show up. You are not concerned about why they are out.

C.  Do not adopt this policy! The policy, as written, does not take into consideration absences due to an FMLA qualifying reason, an accommodation under the American with Disabilities Act, or state disability law.

Answer:  C  
Do not adopt this policy! The policy, as written, does not take into consideration absences due to an FMLA qualifying reason, an accommodation under the American with Disabilities Act, or state disability law.

The U.S. Equal Employment Opportunity Commission (EEOC) recently settled an Americans with Disabilities Act (ADA) discrimination case for over $20 million. The EEOC charged that the company violated the ADA by refusing to make exceptions to its “no-fault” attendance policy and failed to accommodate employees with disabilities. Under the company’s attendance policy, the employee is subject to discipline, that could ultimately result in termination.

If you currently use a no-fault attendance system it is definitely time to review it for compliance. Due to the many exceptions you are required to make, we recommend you reconsider whether a no-fault policy makes sense, and if it does, make sure you are prepared to handle the exceptions. Before you terminate an employee based upon a “no-fault” attendance policy, consult with an employment attorney or an HR professional.

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