COVID-19 and no-fault attendance policies

Can you “point” an employee under a no-fault attendance policy for a coronavirus-related absence? For example, an employee sick with COVID-19 or awaiting test results, quarantined because of an exposure, or at home because a child needs care?

For the uninitiated, no-fault attendance policies operate by having workers accumulate “points” for missing work, arriving late or other attendance-related issues; after the accumulation of a pre-determined number of “points,” employees face discipline or even termination.

During the ongoing COVID-19 pandemic, these policies are not only unnecessarily cruel, but they also might be illegal.

Generally speaking, if a law protects the absence (i.e., the FMLA or the ADA), then it is unlawful under such law to assign a point under an attendance policy for the absence. While there have not been any such cases decided under the FFCRA, one can safely assume the same logic applies. Thus, for employers with less than 500 employees, it would be illegal to assign no-fault points for absences related to: