No-Fault Attendance Policies Unfairly Penalize Pregnant and Sick Workers

Many workplaces have what’s called a “no-fault attendance policy.” This means that the employer records every absence or lateness as a mark against the employee, regardless of the reason. When the employee reaches a certain number, it results in discipline or even termination. These policies are also known as “maximum leave” or “absence control” policies.

The problem with these policies is that they punish workers who have disabilities, illnesses, and pregnancies, which may violate the workers’ rights under federal laws, including the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Pregnancy Discrimination Act (PDA), as well as some state laws. For example, under a no-fault attendance policy, a worker who missed three days of work because they would simply rather be relaxing on the beach is treated the same way as a pregnant worker who is admitted to the hospital for three days due to hypertension caused by the pregnancy—both are punished.

The ADA requires employers to make “reasonable accommodations” for employees with covered disabilities, and one of those “reasonable accommodations” may be allowing flexibility in the employee’s schedule, including coming in late or being absent from time to time, so long as it is not an undue hardship on the company.

The FMLA requires covered employers to allow employees to take up to 12 weeks of leave, including intermittent leave taken in smaller blocks, to care for their own serious medical condition or that of a family member. The FMLA also covers absences for pregnancy-related illness and care of a newborn or newly-adopted child.

The PDA is an amendment to Title VII of the Civil Rights Act of 1964, and it prohibits discrimination by covered employers on the basis of pregnancy, childbirth, or related medical conditions. The PDA requires that covered employers provide unpaid leave to pregnant workers who are temporarily disabled due to the pregnancy to the same extent they must provide it to workers who are temporarily disabled by other medical conditions.

Under these three federal laws, as well as under some state laws, covered workers are legally entitled to take leave that their employer might wrongfully penalize them for under a no-fault attendance policy. The pregnant worker described above who had to take three days off work because she was hospitalized for hypertension would be protected by the PDA and the FMLA, and possibly the ADA as well. Thus, her employer’s no-fault attendance policy unlawfully penalizes her for absences that are protected by law.

The U.S. Department of Labor and the federal Equal Employment Opportunity Commission (EEOC) have recognized the unlawful results of applying no-fault attendance policies to workers protected by these laws. For example, the EEOC filed a lawsuit against Verizon challenging the company’s no-fault attendance plan as violating the ADA, and in 2011, Verizon paid $20 million to settle the case.

Does your employer use a no-fault attendance policy? Have you been penalized for taking time off work that may be protected under law? If so, contact this office for a free consultation.

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