Calibrate Attendance Policy To Avoid Discrimination Pitfalls

Law360
January 22, 2021 Publications

As employers prepare to welcome back their employees from remote work to the worksite in 2021, now is a good time to review workplace policies that may be rendered outdated based on evolving practices and new laws. 

Attendance policies in particular may require a closer look and refresh to be revved up to carry employers through 2021.

A Look Back at Attendance Policies Before the Pandemic

As a result of the pandemic, many employers had to pivot from hard-line, no-fault attendance policies which applied progressive discipline for multiple absences, regardless of the reasoning. 

As a result of the pandemic, policies which allowed for more flexibility for their workers — to take time off to care for themselves while ill, to care for ill family members or to care for children out of daycare and school — were required to meet workforce needs. 

The Centers for Disease Control and Prevention, followed by a number of state and local health departments, also recommended that employers ensure their policies were flexible enough to encourage sick employees to stay at home, and where feasible, to encourage other employees to work remotely.[1] 

The CDC and state and local health departments urged employers to create a level of flexibility within their leave policies to encourage social distancing behaviors that would put the health and safety of all workers at the forefront.[2]  

Federal law was passed to extend paid sick leave and extended family medical leave under the Families First Coronavirus Response Act, or FFCRA, to employees of certain eligible employers. 

These eligible employers included public and private employers with less than 500 employees. 

The goal of the FFCRA, in part, was to help further the aims for social distancing in order to help stop the spread of COVID-19 and to facilitate the adoption of flexible work policies. 

Eligible employers were extended tax credits for providing paid sick leave and extended family and medical leave. Initially, FFCRA leave was available to covered employees through Dec. 31, 2020. 

In December 2020, under the Consolidated Appropriations Act of 2021, eligible employers were given the opportunity to voluntarily extend remaining FFCRA protections to their employees through March 31, 2021, while at the same time continuing to receive a tax credit for doing so. 

While at the start of the pandemic in the U.S. some employers already had existing sick leave policies in place which allowed for employee time off in the pandemic, and could easily comply with FFCRA when it went into effect in April 2020, others did not. 

Some employers were required to hurriedly put such policies and administrative frameworks in place to reflect the new law and its applicability to its full-time and part-time employees with little time for overall policy tuneups.

Some other employers, who were not covered by FFCRA, also chose to adopt temporary policies to allow for similar flexibility as FFCRA during the pandemic. 

These policies ran the gamut from allowing for unpaid to paid leave time across full-time and part-time positions to care for an employee's own illness, the illness of a family member, or to care for a child whose daycare or school was closed as a result of the pandemic, to temporarily providing for larger leave banks to cover general absences related to the pressures of COVID-19.  

Some employers, with generous unlimited leave policies, also saw the need to revisit the structure of their leave programs to set limitations on the approval of leave during the pandemic. 

For some, these new limitations were rolled out in conjunction with employer remote work programs. 

A Look Ahead at Tuning Up Attendance Policies

Now that a vaccine is being rolled out across the U.S. and some employers are considering plans to bring their workforces back onsite, what should happen next? 

What should attendance policies look like in 2021 as employees return to work at their onsite workplaces? 

Should the flexible policies of 2020 be reined back in to pre-COVID-19 proportions and limitations? 

While assessment of workplace leave and attendance policies will need to be reviewed on a case-by-case basis, and driven by the needs of each organization, there are certain universal considerations that should be factored when reviewing current attendance and leave policies. 

The following is a summary of some key considerations for employers working to tune up their attendance and leave policies in order to meet the challenges of transitioning back to their worksites and to stay compliant with growing leave and nondiscrimination laws.

Leave Policy Considerations

Federal Law

Employers should ensure that their attendance and leave policies do not interfere with employee rights as protected by federal law. Additionally, employers should train their supervisors and managers to identify where discriminatory practices related to leave administration can arise in order to prevent them. 

The Family and Medical Leave Act

Under the Family and Medical Leave Act, or FMLA, federal law requires eligible employers to provide 12 weeks of unpaid family leave for the care of an employee's own serious health condition or the serious health condition of a family member. 

For leave taken during this 12-week period, the employee is afforded certain job protection when the employee returns to work. Employees cannot be discriminated against or retaliated against for having exercised or attempted to exercise FMLA rights. Employers that discriminate against or retaliate against employees for exercising rights under FMLA may be subject to large fines and penalties.[3]

Therefore, employer leave policies that mandate progressive discipline for work absences should be carefully reviewed to ensure that they do not penalize or otherwise discriminate against an employee for absences covered by FMLA. 

The U.S. Department of Labor maintains authority for investigating FMLA violations and has issued guidance reiterating that "employers cannot consider FMLA leave as a negative factor in employment actions" invalid and noting that a FMLA retaliation claim is subject to a "but for" standard rather than a "because" standard of causation.[4]

Despite some contrary court rulings limiting aspects of the DOL's position, the DOL has maintained that no-fault attendance policies, while overall permissible, should carve out negative consequences for employees who are absent due to any FMLA qualifying reason.[5] 

Therefore, employers should keep in mind the DOL's position that where attendance credits continue to accrue under a no-fault employment policy for the benefit of employees on other types of equivalent leave, then, the DOL may view it impermissible to limit the accrual of credits for employees on FMLA leave. 

The DOL has taken the position that such differentiation is discriminatory and some courts have agreed with this position. In 2019's Dyer v. Ventra Sandusky LLC, the U.S. Court of Appeals for the Sixth Circuit considered whether a genuine issue of material fact existed as to whether a no-fault attendance policy impermissibly treated FMLA leave differently than other types of leave in violation of the FMLA.[6]

The plaintiff argued that the no-fault attendance policy did violate FMLA because Ventra Sandusky's employees were negatively impacted under the company's attendance policy point system when they took FMLA leave. 

In overturning a lower court decision that granted summary judgment in favor of the employer, the Sixth Circuit Court of Appeals looked at how other non-FMLA leave was treated under Ventra Sandusky's attendance policy.

The court considered the fact that the employer's attendance policy point system did not allow for an employee on FMLA to continue to accrue perfect attendance credits as it did for employees on other similar types of leave such as vacation, bereavement, jury duty, military duty, union leave or holiday leave.[7]

The court noted that the regulations and two written persuasive opinions of the DOL consider that "if an employee on leave without pay would otherwise be entitled to full benefits — other than health benefits — the same benefits would be required to be provided to an employee on unpaid FMLA leave."[8]

Thus, the court held that there were genuine issues of fact as to whether the employer's no-fault attendance policy impermissibly treated other types of "equivalent" leave more favorably than FMLA leave.  

The case was remanded back to the district court for a decision on the plaintiff's FMLA interference claim. 

The Americans with Disabilities Act

Federal law also protects certain eligible employees from discrimination based on a disability. 

The U.S. Equal Employment Opportunity Commission as the federal agency responsible for reviewing ADA claims, has taken the position that no-fault attendance policies which automatically assess negative consequences for absences related to a disability may also be discriminatory.

The EEOC has stated its position that no-fault attendance policies should account for the iterative process under the ADA to ascertain if leave is reasonable as an accommodation in order to facilitate the return to work to perform essential duties of an individual's job. 

In situations where a no-fault attendance policy does not provide for the flexibility to grant leave as an accommodation without negative consequences, and where leave as an accommodation can reasonably be provided without undue hardship, the EEOC has taken the position that such policies may be discriminatory.[9]  

Some courts however have upheld no-fault attendance policies as permissible where attendance is an essential function of the job and where on that basis an employee who cannot meet the attendance requirements is not a qualified individual with a disability due to their unpredictable availability to work.[10]  

In EEOC v. Austal USA LLC, the EEOC brought suit in the U.S. District Court for the Southern District of Alabama against Austal USA on behalf of its former employee Jimmy Cooper who had unpredictable diabetes complications and was terminated for absences under a no-fault attendance policy.[11]

The EEOC asserted the position that Austal USA discriminated against Cooper by failing to provide him leave as a reasonable accommodation and instead terminating his employment for disability-related absences in violation of the ADA. 

Austal moved for summary judgment which was granted.[12] A determinative factor in the grant of summary judgment was that Cooper could not show that he was a qualified individual with a disability because regular onsite attendance was an essential function of the job that he held and permitting an indefinite intermittent leave was not therefore reasonable. 

While this case upheld the employer's no-fault attendance policy based on its particular facts, a key takeaway for other employers considering updating their leave policies is to ensure that no-fault leave policies carve out from their consequences leave that serves as a reasonable accommodation for the disability of covered individuals. 

Employers should then engage in an iterative process with the employee and conduct individualized assessments of the reasonableness of leave as an accommodation to determine the reasonableness of the request based on the employee position and level of hardship to the business.

Uniform Services Employment and Reemployment Rights Act

Another federal law that may be implicated by no-fault attendance policies that may require review, consideration and a policy carveout, is the Uniform Services Employment and Reemployment Rights Act. 

USERRA grants military leave protection rights to covered employees, including members of the uniformed services, reservists and National Guard members for active service or training. USERRA applies to all employers, irrespective of size, and to employees in any position. 

Under USERRRA, an employer is prohibited from denying a covered employee certain rights of employment including:

  • The right to protection from discrimination on the basis of military service.
  • The right to reemployment upon the conclusion of military service.
  • The right to retention of employment for a period after returning from military service.
  • The right to any continued benefit of employment during the period of military service.[13]

It is unlawful for an employer to discriminate or retaliate against an employee for exercising leave rights under USERRA. 

Therefore, a no-fault attendance policy should also carve out military leave taken pursuant to USERRA as leave that will not result in negative consequences under an employer's attendance policy based on the employee's absence. 

State and Local Laws

In addition to federal law, several states and localities have adopted leave policies mandating that covered employers provide leave to its employees that should also be considered in a policy tune up.

In reviewing and refreshing attendance policies, employers should consider whether their policies have kept up with the growing number of states and localities adopting paid sick leave laws across the U.S.

Beyond the provisions of FFCRA, which is temporary, there is no federal law regulating sick leave. Therefore, employers must stay abreast of changes to paid sick leave laws at the state and local levels to avoid discrimination pitfalls. 

In Colorado, for instance, effective Jan. 1, 2021, the Healthy Families and Workplace Act requires a covered employer with 16 or more employees to provide sick leave policies which meet a minimum accrual requirement of one hour of paid sick leave for every 30 hours worked. Covered employees begin accruing paid sick leave immediately upon hire and can accrue up to 48 hours of paid sick leave per year. Employees can carry over accrued leave into the following year. Effective Jan. 1, 2022, the scope of the act will apply to nearly all Colorado employers, regardless of size. 

Other states that have recently adopted new forms of paid leave laws that became effective in 2021 include New York, Maine, Massachusetts and Connecticut.[14] The growing number of states and localities which have implemented new paid sick leave policy requirements since 2012 exceeds 30 locations. 

Paid Time Off Leave Considerations

Attendance and leave policies that provide for PTO irrespective of the reason for the leave may require special consideration for employers with no-fault attendance policies who seek to demonstrate compliance with state and local leave law requirements. Where state or local law requires an employer to provide sick or family leave, employers must be careful not to interfere with the reasonable use of such leave to the extent protected. 

Therefore, in administering a no-fault attendance and leave policy, employers should consider what level of documentation will be required by its policy to ensure that it satisfies its obligation to provide state and local paid sick and family leave without negative consequence. While counterintuitive to the basics of a PTO program which limits the need to track the purpose of requested leave, by requiring an employee to identify whether the leave is taken for the employee's own sickness or to care for a sick family member, this information may assist an employer in confirming and documenting its compliance with state and local leave recordkeeping requirements.

These are just some of the key considerations that employers should be thinking about as they prepare to welcome employees back from remote work to the worksite. By reviewing workplace leave policies now to ensure that policies address FMLA, ADA and state and local paid sick and family leave law requirements, and that managers and supervisors are properly trained on these issues, employers can better position themselves for a smooth transition back to the workplace.

[1] CDC Guidance.

[2] MO COVID Guidance; see KS Reopening Guidance; IL Guidance and CO Guidance.

[3] See 29 U.S.C.A. § 2612., 29 U.S.C.A. § 2615 and 29 U.S.C.A. § 2617 

[4] See WHD Opinion Letter FMLA 2018-1-A; see also Bachelder v. Am. W. Airlines, Inc., 259 F.3d 1112 (9th Cir. 2001); see also Gourdeau v. City of Newton, 238 F. Supp. 3d 179 (D. Mass. 2017)(holding 29 C.F.R. § 825.220(c)

[5] See WHD Opinion Letter FMLA 2018-1-A.

[6] See Dyer v. Ventra Sandusky, LLC, 934 F.3d 472 (6th Cir. 2019).

[7] Id. at 478.

[8] Id.

[9] See EEOC Guidance.

[10] See Jackson v. Veterans Admin., 22 F.3d 277, 279 (11th Cir. 1994)(holding qualified individual status presents a question of material fact) ;see also Equal Employment Opportunity Commission v. Austal USA, LLC, 447 F. Supp. 3d 1252 (S.D. Ala. 2020),appeal dismissed,No. 20-11891-DD, 2020 WL 4931750 (11th Cir. July 8, 2020).

[11] 447 F. Supp. 3d 1252 (S.D. Ala. 2020).

[12] Id. at 1258.

[13] See 38 U.S.C.A. § 4301.

[14] The Connecticut Paid Family and Medical Leave Act won't take effect until January 1, 2022, but employers must start taking deductions from employees' pay to fund the program on January 1, 2021.

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