While in-house counsel have been aware for some time that the EEOC is targeting allegedly inflexible leave policies for systemic investigations, the Commission’s recent targeting of allegedly inflexible “no-fault” attendance policies dramatically raises the stakes for companies. The EEOC’s enforcement position suggests employers should consider exempting certain ADA-qualifying absences from discipline under attendance policies, similar to the way employers already treat FMLA-qualifying absences. Ironically, many employers strictly enforce attendance policies to guard against other types of unlawful discrimination and fear additional “carve-outs” might undermine the company’s EEO objectives. Nevertheless, because a written attendance policy may provide the EEOC with a basis to expand individual ADA charges into class investigations, employers should review attendance policies and programs immediately with the following considerations in mind:
1. Ensure written policies communicate a willingness to consider excusing absences under the ADA and other similar laws.
Policies should, on their face, communicate to employees the intent to consider excusing absences on a case-by-case basis as a form of reasonable accommodation under the ADA. As a practical matter, the federal Family and Medical Leave Act (FMLA) and a growing body of state and local laws require that many other categories of absences be excused. One drafting approach that may reduce the risk that an attendance policy, on its face, fails to recognize such obligations, is to include a provision/paragraph expressly acknowledging the company’s obligations to explore the potential need to carve out certain absences under the ADA, FMLA or state laws. If nothing else, such a statement rebuts a claim that the policy creates a “systemic” violation under the ADA or other laws.
2. Ensure internal systems track the reasons for occasional absences.
Compliance with ADA, FMLA and state law absolutely requires a robust record-keeping system. Employers should re-evaluate whether they have the tools to comply effectively with these increasingly burdensome laws. A growing number of companies are outsourcing the tracking and reporting of employee attendance; these systems should be reviewed to ensure they track ADA excuses in addition to FMLA or state law protections. However, many companies still manage attendance “in-house”, relying on home-grown attendance software or spreadsheets or, in some cases, a paper file maintained by Human Resources. In the worst case, local supervisors or managers might maintain notes in confidential medical files or separate confidential attendance files. Given the growing potential exposure, employers must revisit the systems they are using to capture, access and report absence and tardiness information in an accurate and reliable manner.
3. Determine whether the Company will consider excusing absences as reasonable accommodations at the time absences occur.
Employers must decide whether they will review whether absences qualify for ADA protection at the time they occur or, conversely, only when it “makes a difference” (i.e., at the time an absence may trigger an adverse employment action or denial of a benefit or privileged of employment). In addition, employers should decide whether they will require employees to formally request to be excused from the attendance policy as an ADA reasonable accommodation. While there is law suggesting employees are not qualified if they cannot provide regular and predictable attendance and generally must request reasonable accommodations, the most conservative approach is to review employee medical-related absences for potential ADA protections when they occur and without waiting for employees to request reasonable accommodation. Many employers may lack the resources to individually assess what can be an enormous amount of absences. These employers, at a minimum, must have a system in place to review potential ADA, FMLA or other legal rights before any adverse employment actions are taken under attendance policies.
4. Develop resources to evaluate, in appropriate cases, whether absences were caused by conditions that were ADA disabilities.
Employers who are intent on limiting potential exceptions to attendance programs invariably must become more adept in seeking and evaluating employee medical information. The two major issues such employers will address are whether: a) the absence resulted from an ADA disability; and b) the disability actually required the employee to be absent. In seeking this medical information, among other things, employers should take care to communicate the narrow nature of their medical inquiries and include safe-harbor notices under the Genetic Information Nondiscrimination Act (GINA). To accomplish this, many employers may want to consider retaining an outside medical provider to receive and review employee medical information.
5. Train managers and supervisors to communicate to the appropriate individual internally the medical reasons why employees report late or are absent from work.
Many supervisors withhold from management medical information that employees communicate casually or “confidentially,” believing this is necessary to protect an employee’s privacy interests. Because such information frequently triggers employer obligations to explore reasonable accommodations and/or administer FMLA leave, employers should consider training managers and supervisors on the potential legal significance of employee medical information they may receive and internal procedures for communicating confidentially such information.
6. Ensure attendance programs and policies are uniformly enforced.
Employer claims that regular and predictable attendance is an essential employment expectation can be undermined by inconsistent enforcement. Employers who intend to adopt an aggressive position on this issue should ensure job descriptions and other employment materials state that regular and predictable attendance is an essential job function and/or employment expectation/standard. Employers also should provide managers written guidelines on the rules for enforcing such standards, subject to ADA, FMLA or state law obligations.
7. Ensure absence management vendors and internal leave administrators are familiar with the Company’s ADA leave obligations.
Prompted primarily by FMLA compliance challenges, many employers have been outsourcing FMLA administration to companies that track and report the reasons employees are absent. In many instances, these providers will “deny” leave because FMLA and/or state leave requirements are not met. Employers “own” decisions made by these agents and it is prudent to ensure the external provider and internal representative administering the absence management program knows that FMLA and/or state leave may be the beginning, but not the end, of the company’s leave obligations.
8. Ensure ADA and other protected absences are not considered in annual performance reviews and/or performance-based promotion or compensation decisions.
Even if employers do not issue discipline under no-fault attendance policies, they must guard against attendance being considered in promotion or performance-based compensation decisions. Training of managers and supervisors will help reduce exposure of these claims, as well as periodic audits of decisions impacting individuals who are known to have a history of medical absences protected by the ADA, FMLA or state law.
9. Capture evidence suggesting absences adversely impact other co-workers.
Given comments at a recent EEOC public meeting on leave as a reasonable accommodation, a debate apparently is being waged as to whether leave is “always” reasonable “in the run of cases” under the U.S. Airways, Inc. v. Barnett, 535 U.S. 391 (2002) framework for analyzing ADA reasonable accommodations. In Barnett, the Supreme Court acknowledged that accommodations might not be reasonable because of their impact on other workers, even if the employer was relatively indifferent to providing the accommodation. This nuance may prove to be the critical fact that prevents every ADA absence or leave case from becoming solely a question of “undue hardship” for which employers carry the burden of proof. Employers would be wise to capture and record the impact on other workers that so often arises when employees are absent for significant periods, including those protected by FMLA and/or state leave laws. Such facts may form the foundation for the most important argument in an ADA attendance or leave case – that the accommodation is not “reasonable” either in “the run of cases” or under the “special circumstances” at issue in a particular case.
10. Consider implementing an internal dispute resolution program to mitigate the risk of potential claims.
Given the breadth of potential exposure, employers might want to consider allowing individuals to file claims under internal dispute resolution procedures. Doing so may provide the employer an invaluable opportunity to understand better the facts which would be presented in an ADA case. It also may help employers “spot” potential flaws in its attendance and/or absence management program.