How ‘No-Fault’ Attendance Policies May Run Afoul of the FMLA or the ADA

Employers today continue to innovate in many areas related to the operation of their workplaces. When they do so, modifications in the way workplaces function may impact many areas. Sometimes, they may even violate certain employment laws, like the Americans with Disabilities Act and/or the Family Medical Leave Act. If that has happened to you, don’t suffer in silence. Instead, retain an experienced Atlanta employment retaliation lawyer and take action.

One of those relatively recent innovations is the “no-fault” attendance policy. These policies are used by some of America’s biggest employers, in industries ranging from food processing to hospitality to manufacturing to retail. Under a “no-fault” system, you, as an employee, incur a “point” (sometimes called an “occurrence”) each time you have an unplanned absence, late arrival, or early departure, regardless of the reason.

On the surface, it might sound good, as it potentially removes the need to jump through various paperwork-acquisition tasks and other hoops to justify or excuse your absence. However, these policies have downsides. For one thing, some can automatically trigger severe consequences after an employee exceeds a certain number of occurrences. These consequences may include a suspension without pay or termination, even if all of the employee’s absences were legitimate and medically based.

The U.S. Department of Labor pointed out in a recent memo that these policies potentially can violate employment laws, including the FMLA. The law forbids employers from assessing points or occurrences against an employee when that employee misses work for an FMLA-approved reason.

As an example, say that you are approved to use intermittent FMLA leave for your chronic migraines. In February, you missed work on the 4th, the 15th, and the 25th because you had migraines those days. Despite your having obtained approval to use FMLA leave, your employer nevertheless assessed three attendance points against you for those three days you missed, leaving you just four points away from discipline and seven points away from termination.

This, according to the Labor Department, potentially amounts to illegal retaliation. FMLA-related retaliation occurs when an employer takes an adverse action against you for exercising your rights under the FMLA. If your absence was an instance of using FMLA-approved leave, then your employer assessing points against you counts as your employer taking an action adverse to you based upon your exercising your rights under the FMLA. That’s not allowed and makes for a possible case of FMLA retaliation.

COVID-19 and No-Fault Attendance Policies

Additionally, there’s the very current concern of COVID-19. The Equal Employment Opportunity Commission last year declared that the symptoms of COVID-19 could, depending on the employee’s overall condition, constitute a disability under the ADA. If your case of COVID-19 did qualify as a disability under the ADA and your employer assigned points against you under its “no-fault” attendance rules for missing work due to COVID-19, then that might be the basis of a valid ADA case.

Employers, whether to make employees’ lives easier or to make their businesses more profitable (usually the latter more than the former), are frequently modifying the way their workplaces operate. When they make these changes, their new rules must remain compliant with laws like the FMLA and the ADA. If they don’t and you’re harmed as a result, you may be entitled to sue and receive substantial compensation. Talk to the knowledgeable Atlanta FMLA interference and retaliation attorneys at the law firm of Parks, Chesin & Walbert to learn more about the options that may exist for you. Contact us through this website or at 404-873-8048 to schedule a consultation.

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