Is your small business inadvertently running afoul of the ADA-required interactive process?
What are no-fault attendance policies?
On the surface, no-fault attendance policies might seem like a good idea for employers. These types of policies assign no “blame” or attempt to account for the reason for the employee’s absence, they simply count the number of times the employee is late or does not present for work. Usually, there is an allowable number of occurrences, with escalating levels of correction as the employee accrues points for each occurrence: verbal and written coaching, final notice, and separation. They are a little like no-fault car accidents, where the police simply report what happened, and do not issue a traffic ticket to one of the involved drivers.
But if the employee is missing work due to a Family and Medical Leave Act (FMLA) or Americans with Disabilities Act (ADA) covered reason, the employer could find itself in legal peril by utilizing this approach to manage attendance.
- The FMLA applies to certain employers with 50 or more employees, and the ADA applies to most employers with 15 or more employees.
- The Equal Employment Opportunity Commission has targeted these types of policies in their strategic plan – under principle I3a, the agency identifies a focus on “Qualification standards and inflexible leave policies that discriminate against individuals with disabilities”.
- Many states have enacted paid sick leave policies that require the use of covered time off to be automatically excused by the employer, and therefore not counted against the employee under these types of policies.
Designing a compliant flexible attendance policy
The company attendance policy should be part of a well-designed handbook, which allows employers to summarize important policies and allows for a reference for both employees and employers as each navigates the employment relationship.
When implemented correctly, the handbook provides a signed document where each employee acknowledges the document and that they have had the chance to ask questions about the handbook.
This acknowledgement provides a reference point for the employer to show what the employee knew or should have known during the employment relationship.
However, even though the policies may be well defined and available, a covered employer must allow for the reason for attendance issues. The ADA requires an individualized assessment of each situation and encourages employers to engage in an interactive, thoughtful dialogue with employees about what is needed for a successful accommodation or return to the workplace after a covered leave. This dialogue may lead to reasonable accommodation request like a reduced schedule or temporary telework. So, if the employer has a policy that an employee is separated after a certain number of days on leave, a seemingly neutral policy like automatic separation after a period of time on leave does not allow for the flexibility this law requires.
What to Consider When Designing an Attendance Policy
For companies subject to FMLA regulations, that law allows for intermittent use of time off and this must be considered when applying the attendance policy.
One of the first things an employer can do to ensure compliance is to create a culture where employees feel confident and secure in sharing the reason for absences.
When an attendance issue is emergent, the employer is encouraged to ask questions to begin the interactive process by requesting the reason for the absence. Line managers should be trained to listen for cues of then it’s a good idea to refer to HR, who will continue the conversation by mentioning the flexibility these laws allow and offer the opportunity to apply for intermittent covered leave.
In some instances, employers may still want to implement an occurrence-based policy. This is allowable with a few stipulations: the policy should allow for the absence to be excused if employee supplies a doctor’s note and ensure that only non-protected absences accrue points under such a system. If any counseling occurs for an employee with covered absence, the employer should take care to only include non-covered instances in the documentation.
In short, a policy that was originally implemented to be a neutral tracking procedure may not be appropriate in all cases. Any policies implemented should have an element of flexibility and allow for reasonable accommodations and be communicated appropriately through an employee handbook and implementing processes.
As a human resources consulting firm dedicated to uncomplicating HR for small business owners and leaders, we’re here to help you with all aspects of your HR needs. Call us at 804-715-1920 or contact an HR Business Consultant to schedule a consultation.
This article does not constitute legal advice and there are subtle variations in employment law as it pertains to this topic, depending on where your business operates. It is strongly suggested that you seek consultation or legal counsel before making decisions about policies.