Three Strikes And You’re Out? The Risks Of Occurrence-Based Attendance Policies

What Employers Should Know Before Counting an Absence Against an Employee

Occurrence-based attendance policies are attractive because they appear simple and objective. An employee receives a point, occurrence, or “strike” for an absence or tardiness, and accumulating a specified number results in progressive discipline or termination. Because the policy focuses on the occurrence rather than the reason for it, employers may view it as a consistent way to manage absenteeism.

However, that simplicity can create legal risk. Federal disability law and state paid sick leave laws may prohibit employers from counting certain absences against employees. As a result, an employer that mechanically applies a “three strikes and you’re out” policy could find that one or more of those strikes should not have been counted.

Occurrence Policies and the ADA

The Equal Employment Opportunity Commission (“EEOC”) has repeatedly addressed attendance policies in its guidance under the Americans with Disabilities Act (“ADA”). Although employers generally may establish legitimate attendance requirements, the ADA may require an employer to modify an attendance policy as a reasonable accommodation for an employee with a disability, absent undue hardship.

The EEOC specifically identifies “no-fault” leave policies as potentially requiring modification. Those policies can include rules limiting the number of unplanned absences during a particular period and imposing discipline or termination once the employee reaches the limit. An employee with a disability is not automatically exempt from the policy, but the employer may need to make an exception for disability-related absences as a reasonable accommodation.

For example, the EEOC considers an employer that permits only four days of unscheduled leave each year. If an employee explains that a disability may periodically require additional unplanned absences, the employer may need to engage in the interactive process and determine whether intermittent leave or another modification is a reasonable accommodation.

An Occurrence May Require a Second Look

The ADA does not require employers to abandon attendance requirements. Nor does it necessarily require employers to excuse unlimited, chronic, or unpredictable absences. Depending on the circumstances, an employee’s absences may prevent the employee from performing an essential job function or may create an undue hardship for the employer.

The problem is automatic application. When an absence may be disability-related, the number of occurrences alone may not answer whether discipline is appropriate. The employer may need to consider the reason for the absence, whether the employee has requested an accommodation, whether an accommodation would be effective, and the actual operational impact of the requested accommodation.

Employers should also remember that there are no magic words. Employees need not use the words “ADA” or “reasonable accommodation.” An employee who communicates that a medical condition is causing attendance problems and requests a change may have triggered the accommodation process.

State Laws Can Create Different or Stricter Limitations

State paid sick time laws may provide more strict limitations on absenteeism policies as they relate to the use of paid sick time. Employers who have remote employees or locations in multiple jurisdictions may find this a significant compliance challenge. For example, Arizona’s paid sick leave law presents a particularly clear example of how an occurrence policy can run afoul of state law. In fact, Arizona law expressly addresses absence-control policies. Under A.R.S. § 23-374(C), it is unlawful for an employer’s “absence control policy” to count earned paid sick time taken under the statute as an absence that may lead to discipline, discharge, demotion, suspension, or another adverse action. In other words, uniform application does not necessarily mean lawful application.

The Risk Is in the Counting

Occurrence policies can create problems before an employee is terminated. States like Arizona prohibit counting protected earned paid sick time as an absence that may lead to discipline or another adverse action. An employer should not assume there is no issue until the employee reaches the final occurrence.

The ADA presents a related concern. The EEOC states that employers may not penalize employees for taking leave that has been provided as a reasonable accommodation. An employer therefore should ensure its attendance system does not automatically assess occurrences for approved disability-related accommodation leave.

Practical Considerations for Employers

Employers do not necessarily need to abandon occurrence policies, but they should build safeguards into how those policies are administered. Employers should consider:

• Identifying which types of protected leave or absences must be excluded from occurrence calculations;
• Establishing a process to identify attendance issues that may implicate the ADA before discipline is imposed;
• Training supervisors to recognize potential accommodation requests;
• Coordinating attendance policies with ADA accommodation, FMLA, and state-law leave procedures; and
• Reviewing occurrence totals before discipline or termination to confirm that protected absences have not been improperly included.

A point-based system may make attendance administration easier, but it cannot replace the legal analysis required for individual absences. Before treating the third strike, or the fifth point, or the tenth occurrence as grounds for discipline, employers should confirm that every absence being counted is one the law permits them to count.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.