Commentary & Opinion

COVID-19 and no-fault attendance policies

By Jon Hyman

Nov. 9, 2020

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:

  1. A federal, state, or local quarantine or isolation order related to COVID-19;
  2. Self-quarantine or isolation related to COVID-19 based on the advice of a health care provider;
  3. The seeking a medical diagnosis for COVID-19 after experiencing symptoms;
  4. The caring for an individual subject to an order described in (1) or isolation/quarantine as described in (2); and
  5. The care for one’s child whose school or place of care is closed (or child care provider is unavailable) due to COVID-19.
Even if the FFCRA does not protect an employee’s absence an employer must still consider whether some other law, such as the FMLA, ADA, or GINA, offers similar protection.
In other words, pointing employees for COVID-related absences is fraught with risk. It’s also unnecessarily cruel. We are all trying to do our part to halt the spread of this rapidly accelerating virus. This including isolating, quarantining, and taking care of others who are at risk or unable to care for themselves. This pandemic needs compassion and flexibility, not strict adherence to rigid policies.
Jon Hyman is a partner in the Employment & Labor practice at Wickens Herzer Panza. Contact Hyman at JHyman@Wickenslaw.com.

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