The EEOC has long waged war against “no-fault” or rigid employment policies. No-fault attendance policies penalize employees by issuing them points (also known as occurrences) for absences, late arrivals and early departures. It is the agency’s position such policies tend to violate the ADA. Treehouse Foods, Inc., a Georgia-based food manufacturer, had to learn this lesson the hard way.

The Case

The EEOC recently filed suit against Treehouse based on their attendance policy. According to the complaint, Treehouse denied a 19-year employee’s request for an accommodation in the form of intermittent unpaid leave on at least five occasions due to treatment and hospitalizations for her COPD, chronic bronchitis, chronic bleeding ulcer and high blood pressure. Instead, the complaint asserts Treehouse failed to engage in the interactive process and assessed attendance infraction points to the employee under a rigid attendance policy. Treehouse Foods then fired her for exceeding the permissible number of attendance points despite the fact she provided medical excuses showing the absences were disability-related and despite the fact Treehouse’s third-party administrator later approved the leave.

The Issue

The ADA prohibits from making employment-based decisions based on a person’s disability. The ADA further requires employers to provide reasonable accommodations to individuals with qualified disabilities unless the employer can show it would suffer an unreasonable hardship by granting the accommodation.

The problem with the attendance policies, like the one at issue, is that they focus on penalizing employees, who are subjected to progressive discipline that could lead to termination. Many times, they prevent the interactive process from ever starting and rarely do they alert employees as to their rights. Here, for example, intermittent medical leave could have been approved, which would have ultimately spared the employee’s job.

Other Considerations

In addition to potential ADA claims, no-fault attendance policies also face other legal challenges. If the FMLA protects an employee’s absence from work, an employer would violate the FMLA by counting the absence as part of a no-fault attendance policy. To the extent the point system causes breakdowns in communication, employers may also face FMLA interference claims.

For Arizona employers, no-fault policies likely violate the Earned Paid Sick Time statute, which strictly prohibits retaliation for taking time allowed under the statute.

Employer Takeaways

Employers should immediately assess their attendance policies. Attendance policies that penalize employees for taking time carry a significant degree of risk. Employers should seek to amend such policies and implement non-punitive policies while keeping in mind the applicable federal and state laws. Additionally, employers should train management on the applicable laws so they are able to identify when absences are federally, or state, protected and/or require the employer to engage in the interactive process.

About the Author: Alejandro Pérez is a partner at Jaburg Wilk. Fully bilingual, Alejandro assists employers of all sizes with labor and employment law issues. In addition to representing clients in litigation, Alejandro provides advice and counsel on HR decisions; conducts sensitive workplace investigations; drafts and reviews employment policies, handbooks, and agreements; and trains workforces on a variety of aspects of employment law.

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