HR Administration

The FMLA, the ADA and No-Fault Attendance Policies

By Staff Report

Jul. 2, 2013

A no-fault attendance policy assigns points each time an employee is absent, with corresponding levels of progressive discipline automatically imposed at certain point levels. Employers like these policies because they simplify attendance issues. These policies, however, carry, a certain degree of risk—namely in the handling of absences protected by the Family and Medical Leave Act or the Americans with Disabilities Act. If the FMLA or ADA protects an employee’s absence from work, an employer would violate the statute by counting the absence as part of a no-fault attendance policy.

Employers have a lot to gain from no-fault attendance policies, both in ease of personnel management and certainty in attendance calculations. In deciding whether to adopt or continue a no-fault attendance policy, however, employers must carefully balance those benefits against the risk of FMLA or ADA violations. Moreover, with a no-fault attendance policy in place, employers must be careful to train those responsible for administering the policy with the exceptions required by the FMLA and ADA for protected absences.

Written by Jon Hyman, a partner in the Labor & Employment group of Kohrman Jackson & Krantz. For more information, contact Jon at (216) 736-7226 or jth@kjk.com.

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