No Fault Attendance Policy Violates ADA, Claims EEOC

By Lehr Middlebrooks Vreeland & Thompson, P.C.

August 28, 2018

The Equal Employment Opportunity Commission continues to focus on the implications of the Americans with Disabilities Act on employer "no fault" attendance policies. The EEOC filed a lawsuit against Mueller Industries, Inc. (no relationship to Special Counsel Robert Mueller) claiming that Mueller violated the ADA in two respects. First, there was automatic termination of an employee who was unable to return to work after 180 days on leave. Second, the employer's no fault attendance policy did not provide for an individualized assessment of the reasons for the absences, some of which may be covered under the ADA.
 
The company entered into a consent decree with the EEOC which will last for two and a half years. The consent decree provides for over $1 million in monetary relief, requires the company to reinstate employees terminated under the no fault attendance policy or automatic termination policy, and requires posting a notice to all employees regarding its ADA violations.  
 
Employers are not required to accommodate a request for indefinite leave or for leave where the employee or the employee's healthcare provider does not provide an estimated date when the employee may return to work. However, an employer may not on a per se basis state that any leave that exceeds a certain amount of time means the employee is terminated. The ADA requires an individualized assessment of whether such leave may be accommodated. That said, if leave is requested for an extended period of time with an anticipated return date, the employer does not violate the ADA if, after making an individualized assessment, the employer concludes that it needs to fill the employee's position on a permanent basis, but communicates to the employee that if and when the employee is able to return to work, the employer will consider the employee for whatever jobs may be available.  
 
Poorly administered no fault attendance policies can also run afoul of the Family Medical Leave Act, where FMLA-protected absences may not count as occurrences. An employer does not have to tell the employee that an occurrence will not count against the policy, but as the employer reviews disciplinary actions to take based upon points accumulated, the employer should err on the side of caution regarding absences which may be protected under the FMLA or ADA.