No-Fault Attendance Policies Are Often Illegal

no-fault-attendance-policies-workplaceA “no fault” attendance policy gives employees a certain number of days that they can miss or be late, which are also known as “occurrences” or “occasions” without facing discipline. When the number of such days reaches a certain level without a certain time period, the employee begins to incur disciplinary action, including write-ups, suspension and eventually termination.

Often, these types of no-fault  attendance policies are applied in ways that violate medical leave or disability discrimination laws. If the employee’s “occurrences” are the result of his disability or a protected serious health condition, the employer should not count them as “occurrences” under the no fault policy, because a conduct or absences caused by a disability are considered part of the disability itself and protected as FMLA / CFRA or ADA disability.  In other words, protected absences due to a qualifying medical condition or a disability cannot be counted as “occurrences” toward a discipline (Avila v Continental Airlines  (2008)). And “conduct resulting from a disability is considered part of the disability rather than a separate basis for termination” Humphrey v Memorial Hosps. Assn (2001).

Further, rigid or inflexible “no-fault” policies can violate the disability accommodations rules, because one of reasonable accommodation that an employee might be entitled to is adjusting employment policies, such as the “no-fault” policy, to eliminate the negative impact of the disability (McAllindin v Count of San Diego (1999)).

Here is a typical situation in which an employer might be found to be liable for ADA disability discrimination and wrongful termination: an employee whose punctual arrival to work is not extremely important is diagnosed with severe Apnea (sleeping disorder) that causes sleeplessness and occasional tardiness. That employee promptly advised his employer of his condition and provide a medical note reflecting the condition, symptoms and the need to accommodate that employee’s occasional tardiness. That employer has a no-fault attendance policy where an employee can be late to work for more than 5 minutes on no more than 3 occasions per quarter. The fourth occasion results in warning, fifth occasion results in suspension and the sixth occasion results in termination. The employee suffering from Apnea ends up being late to work for more than five minutes on three occasions during a given quarter, and he is also late for more than 5 minutes three additional times due to sleep Apnea. The employer counts the latter incidents as “occurrences” for a total of six, despite their knowledge of the reasons for at least some of the tardiness, and terminates that employee any way. In this kind of scenario, the employer will likely be liable for wrongful termination, because the disability caused absences counted toward the total number of “occurrences”.