"No-Fault" Attendance Policy Upheld against Disability Claims

Employers continue to be confused about how to handle absences related to disabilities, as to applying their "no-fault" attendance policies.  No-fault attendance policies do not generally consider the reason for an absence, except for certain statutory exceptions, like FMLA, and consider simply the absence from work as resulting in points under their point system.  However, the Equal Employment Opportunity Commission (EEOC) has long taken the position that some type of accommodation is necessary, or at least the interactive process should be used, in connection with the absences related to a disability.  By and large, the EEOC has had difficulty in getting its position accepted in the courts.

The most recent application of this concept occurred in a case in which a company had consistently applied its no-fault attendance policy.  Davis v. PHK Staffing, LLC, No. 22-03246 (10th Cir. 2023).  The court pointed out that:  "Indeed, she identifies no employee who received leniency under the attendance for arriving late, leaving early, or missing work altogether on an unscheduled basis for medical reasons."  The court thus found that the employer was in its rights when it terminated an employee who had accumulated too many points for unscheduled absences.  The court dismissed the argument that the employer failed to accommodate her disability, holding that her requests were unreasonable.  The plaintiff's request to miss work on an as-needed basis wasn't reasonable because it would eliminate her regular and reliable attendance, which is an essential function of her job, according to the court.  Further, the plaintiff's argument to have the company remove already accrued absent points wasn't reasonable, because the Americans With Disabilities Act (ADA) doesn't require it to rescind discipline handed out before an accommodation request.

This article is part of our March 2024 Newsletter. 

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