1.7 million reasons to reconsider issuing attendance points for medically-related absences

Burger Time and Astrosmash…who’s with me, Millennials!

[Sigh]

What does any of this have to do with employment law? Not much, I guess. The lede said “points,” and then I started thinking about video games, and I’m a sucker for Intellivision nostalgia. Well, anyway, the key here is points. Last week, the EEOC announced in this press release that it had reached a $1.7 million consent order with an Illinois-based provider of advanced packing solutions.

What got the EEOC’s dander up? According to the press release, the EEOC concluded that the employer “discriminated against individuals with disabilities by disciplining and discharging them according to its nationwide policies to issue attendance points for medical-related absences; not allowing intermittent leave as a reasonable accommodation; and not allowing leave or an extension of leave as a reasonable accommodation.”

Just say “No” to no-fault attendance policies.

If you have what many refer to as a “no-fault attendance policy”; that is, employees who exceed their quota of time off are automatically disciplined or fired, you need to check yourself before you wreck yourself. That is, under the Americans with Disabilities Act, you must provide a reasonable accommodation to a qualified individual (e.g., an employee or applicant) if doing so will allow that person to perform the essential functions of the job.  Once such accommodation may be leave. Even intermittent leave, while generally associated with the Family and Medical Leave Act, basically amounts to a flexible work schedule. A flexible work schedule is another form of accommodation that is generally considered reasonable under the ADA (except where attendance and punctuality is an essential function of the job).

So, even if an employee with a disability has exceeded whatever leave quota your employee handbook may contain, if additional leave is reasonable, then forget about firing that employee.

Take it from the EEOC

“Employers need to get this message: Inflexible, strictly enforced leave policies can violate federal law. As an employer, make sure you have exceptions for people with disabilities and assess each situation individually.”

Image Credit: “Intellivision-Console-Set” by Evan-Amos – Own work. Licensed under CC BY-SA 3.0 via Commons.