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The Many Pitfalls of No-Fault Attendance Policies

The ACLU recently filed a first-of-its-kind class action lawsuit against AT&T Mobility claiming the company’s no-fault attendance policy violates the Pregnancy Discrimination Act (“PDA”). While the popularity among employers of no-fault attendance policies has grown over the years, this lawsuit illustrates why they should think twice (and consult an experienced employment lawyer) before implementing such a policy. No-fault attendance policies like the one challenged by the ACLU do not draw any distinctions among the reasons given for an employee’s absence; rather, they punish any kind of absence with points which, after a certain number, result in termination. While at first blush such a “neutral,” simple to administer policy might seem appealing, these types of one-size-fits all employee policies rarely, if ever, hold up when challenged in court or before the EEOC or other government agencies.

First and foremost, in Arizona, such a policy undisputedly violates Arizona’s newly-enacted paid sick time law, which expressly states employers may not count legitimately taken paid sick time against an employee for purposes of imposing discipline. Thus, Arizona’s paid sick time law actually requires employers to distinguish between absences protected by the statute and those not protected by the statute. Permissible uses of paid sick time in Arizona include an employee’s own mental or physical illness or that of a family member (which is very broadly defined); closure of a workplace or a child’s school due to a public health emergency; abuse, domestic violence, sexual violence, and stalking.  On the federal level, the U.S. Department of Labor long ago cautioned that employers should not use such policies to penalize employees for taking leave under the Family and Medical Leave Act (“FMLA”). Arizona’s list of permissible uses of leave is, however, more expansive than the FMLA’s list of permissible uses.

Second, a no-fault attendance policy also could violate the Americans with Disabilities Act (“ADA”). Specifically, if a disabled employee needs to take an absence as a reasonable accommodation for her disability, her employer may not punish her for doing so by counting that absence against her for purposes of discipline. As a side note, other popular “neutral” policies also frequently run into trouble under the ADA. For example, leave policies that require employees to have been employed for a certain period of time before being eligible for leave, policies that limit the amount of time employees may be out on leave, and policies that require employees to be 100% healed before returning to work may not comply with the ADA’s mandate that employers provide reasonable accommodations to disabled employees. It is important to remember the core purpose of the ADA’s reasonable accommodation provision is to require flexibility from employers, including possible modification of a one-size-fits all policy, to the extent reasonable, to enable disabled employees to perform their job.

Finally, as alleged in the ACLU’s recent lawsuit, no-fault attendance policies may violate the PDA. As noted by the ACLU in its press release, even “normal” pregnancies can cause persistent nausea, fatigue, and other health conditions, and at the very least may require frequent doctor’s visits during working hours. No-fault attendance policies do not consider this, and thus, argues the ACLU, they disproportionately penalize pregnant workers in violation of the PDA. While no court has yet addressed this precise question, the ACLU’s lawsuit follows the trend of challenging one-size-fits all policies, and employers should be advised that such challenges (typically brought under the ADA) have been successful and will continue to be brought by employees who end up on the wrong side of these policies.

Article Written By: Ariel Henderson

Employment Law

AHenderson@nullwaterfallattorneys.com