There has been a significant development in how the EEOC views No-Fault Attendance Policies that fail to consider whether the reason for an absence was due to a disability. Employers that don’t consider disability-caused absences in applying discipline can be in jeopardy under the ADA for failing to reasonably accommodate the employee’s disability by modifying its attendance rule.
The Development – Verizon Pays $20 Million to Employees Affected by No-Fault Attendance Policy
On July 6, 2011, the EEOC and Verizon entered into a Consent Decree providing for the payment of $20 million to employees who were fired or disciplined under the company’s No-Fault Attendance Policy. The EEOC had sued Verizon on behalf of a class of employees who were denied reasonable accommodations as exceptions to the company’s No-Fault Attendance Plan when their absences were due to a disability.
The No-Fault Policy – No Exceptions Granted for “Chargeable Absences” Caused by a Disability
Verizon’s No-Fault Attendance Policy provided for progressive discipline through multiple steps up to and including discharge for all absences, including absences caused by a disability, except for FMLA, jury duty, military, death in the immediate family or excused time with pay. The accumulation of a certain number of “Chargeable Absences” lead to discipline and ultimately discharge. There was no exception allowed for a qualified individual with a disability whose “Chargeable Absence” was caused by the disability nor was there any provision for reasonable accommodation.
What Employers Should Do – Ask if the Absence Rule Should be Modified as a Reasonable Accommodation for a Disability
Modification of company rules has always been considered as a potential reasonable accommodation. Now, leave policies have become a focus of the EEOC. The Consent Decree offers some guidance for other employers. Using that Decree as a guideline, the following checklist can be used to determine if an absence is “Chargeable”:
Checklist for Reasonable Accommodation of an Absence
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Is the employee disabled?
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Is the absence caused by a disability?
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Is request to be off due to disability?
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Have the past absences not been unreasonably unpredictable, repeated, frequent or chronic?
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Is the current absence not expected to be unreasonably unpredictable, repeated, frequent or chronic?
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Is there a definite or reasonably certain period to be off due to disability?
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Does this time off not pose a significant difficulty or expense for the company’s business?
If ALL of these seven factors are met, then the absence is NOT CHARGEABLE.
If ANY one factor of the seven factors is not met, then the absence IS CHARGEABLE.
In the wake of this development, employers should:
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Carefully review existing attendance policies to ensure that consideration may be given for certain absences as a reasonable accommodation;
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Review pending attendance discipline to ensure that past absences due to disability (using the 7-Factor analysis) should have been accommodated;
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Consider revising current disability discrimination/reasonable accommodation policy statements to allow for attendance rule modification as a reasonable accommodation;
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Consider developing a checklist using the 7-Factors to analyze each absence; and
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Train managers and supervisors to consider disability (using the 7-Factor analysis) when deciding to issue discipline.
Should you have questions, please contact your regular Hall Render attorney or a member of our Employment and Labor Section.
