Posted by: Brian LaFratta

In order to combat excessive absenteeism, many employers have implemented point systems.  Under such systems, the employee accumulates a point for each absence, and once the employee reaches a certain number of points, he or she is automatically terminated.  Such a system seems to be fair and reasonable, as presumably all employees will be treated the same way.  However, the EEOC feels differently and has cracked down on such policies in recent years.  According to the EEOC, such policies violate the Americans with Disabilities Act (“ADA”), which requires employers to accommodate employees with disabilities.  The EEOC’s concern is that a strict attendance policy does not make exceptions for absences caused by disabilities, which under the ADA must be accommodated.

To demonstrate its seriousness on this issue, the EEOC has filed several lawsuits against employers with such policies.  For example, several years ago, the EEOC sued Verizon communications for a strict attendance policy resulting in a $20 million settlement which included non-monetary relief such as revising attendance and other employment policies.  As one EEOC spokesperson put it, “This settlement demonstrates the need for employers to have attendance policies which take into account the need for paid or unpaid leave as a reasonable accommodation for employees with disabilities.”  More recently, the EEOC sued AutoZone for a similar policy.

What does this mean for you? While strict attendance policies are sensible in theory, such policies should take into account the reason for the absence.  Employers should reconsider strict attendance policies and instead evaluate attendance issues on an individualized basis.