Absenteeism Management And Employers’ Obligations Under The ADA And FMLA

Practical guidance for employers

Absenteeism is among the most common employee performance issues confronted by human resources professionals, and will remain one of the most common personnel matters as employers resume in-person operations. Almost all employers have detailed policies describing expectations for attendance, callouts, leave, etc. Nonetheless, managing absenteeism often involves more than mechanical application of leave and attendance policies, and can be a source of liability if not handled correctly. Aside from allegations of disparate treatment amongst protected classes (i.e., male employees receiving more favorable treatment than females), two common sources of such liability are the Americans with Disabilities Act (ADA), and the Family and Medical Leave Act (FMLA). 

Legal Background  

The ADA is most commonly associated with an employer’s obligation, absent “undue hardship,” to provide “reasonable accommodations” to qualified employees with a “disability,” as those terms are defined under the law.  Assuming an employee is able to satisfy the low bar of being considered disabled under the ADA, required accommodations are defined broadly and can include a variety of workplace modifications and/or adjustments. For example, the ADA specifically notes that “part-time or modified work schedules” may be a reasonable accommodation,¹ and the EEOC’s Enforcement Guidance provides that “[g]ranting an employee time off from work or an adjusted work schedule as a reasonable accommodation may involve modifying leave or attendance procedures or policies.”² With the exception of indefinite leave or open-ended “work when able” accommodations,³ courts have largely agreed with the EEOC that leave or modified work schedules may be a required accommodation under the ADA.
 

Under the FMLA, eligible employees must be allowed to take up to 12 weeks of job-protected unpaid leave in a 12-month period for, among other things, their own “serious health condition” or to care for a family member with such a condition. Leaves protected by the FMLA may be taken intermittently – “taking leave in separate blocks of time for a single qualifying reason – or on a reduced leave schedule – reducing the employee’s usual weekly or daily work schedule.”⁴ According to the FMLA’s regulations, employers may not use the taking of FMLA protected leave as a “negative factor” in employment decisions, including the application of attendance policies.⁵

Practical Guidance for Employers

With this legal framework in mind, here are a few steps that employers should take to ensure that application of attendance policies does not run afoul of obligations under the ADA and FMLA.

First, managers – who most commonly address attendance issues on a day-to-day basis – should be trained on detection of potential medical leave or reasonable accommodation situations, and they should be instructed to elevate such situations to human resources for proper handling. Absent circumstances where the need for an ADA accommodation or FMLA leave is obvious,⁶ employers generally are not required to provide FMLA leave or an ADA accommodation until there has been a request by an employee.⁷ That being said, employees are not required to use magic language or specifically reference the ADA or FMLA to trigger an employer’s obligations.⁸ Rather, disclosure of a potentially “FMLA-qualifying circumstance” or medical condition, along with an inquiry into leave options (or alternative accommodations) will likely be sufficient to trigger an employer’s obligations under the FMLA and ADA.⁹ 

In the absence of, or prior to, knowledge of circumstances triggering the protections of the ADA or FMLA, employers generally are free to take disciplinary action consistent with their attendance policies.¹⁰ Managers must therefore be able to identify a request for an accommodation and/or FMLA leave – and direct the request to the appropriate channels – before setting down a road of performance management. Human resources personnel asked to support a manager in addressing attendance concerns should likewise investigate an employee’s poor attendance and any related communications to be satisfied that there has been no accommodation or FMLA leave request.

Second, employers should ensure that attendance policies are clear on the consequences for failure to satisfy expectations surrounding attendance, but not so rigid that there is no room for exceptions when required for a medical condition or disability. Many employers have adopted “no fault” attendance policies that assign “points” or “occurrences” for absences, and employees are subject to termination for exceeding the allotment of absences, regardless of the reasons for such occurrences. While these policies appropriately ensure consistency in the application of attendance policies, employers must ensure that employees are not penalized with “occurrences” for FMLA qualifying leave, and that exceptions can be made to such policies where required to accommodate an employee’s disability. 

While courts have largely been reluctant to allow claims for failure to accommodate under the ADA where an employee is unable to satisfy the attendance requirements of a position,¹¹ these decisions typically hinge on the essential functions of the particular position at issue, as well as the burden of unreliable attendance on the employer’s specific business operations. The EEOC has maintained that failure to modify attendance policies as a reasonable accommodation may be a violation of the ADA,¹² and has continued to pursue ADA claims against employers for failure make exceptions to attendance policies (with mixed results).¹³ Employers should, therefore, analyze attendance issues on an individualized or case-by-case basis, and ensure that disabled employees and those requiring medical leave under the FMLA are not subject to a “one-size fits all” approach under attendance policies. 

Third, employers should not assume that an employee who has exhausted the leave available under the FMLA and/or company policy is not entitled to additional leave under the ADA. While a disabled employee may be entitled to leave under both the ADA and FMLA, these laws operate independently, and the leave entitlements under both laws should be analyzed separately by employers. This means that an employee who is “disabled” under the ADA may be entitled to more than 12 weeks of leave in a 12-month period “if the additional leave would not impose an undue hardship on the operation of the employer's business.”¹⁴ Accordingly, the explicit entitlements to leave under company policy and the FMLA should not be considered an exhaustive description of the leave available to a disabled employee. 

Finally – although not directly relevant to the ADA and FMLA – employers should consider whether state or local law creates additional leave entitlements when managing absenteeism. State and local jurisdictions have been particularly active in passing sick and family leave laws that are more generous than the FMLA, and many have altered the disability accommodation framework created by the ADA. Employers must therefore ensure that attendance policies are implemented consistent with the leave and disability accommodation laws in the jurisdictions where they operate, and that they seek guidance from experienced counsel where necessary.

Notes  

• ¹  42 U.S.C. § 12111(9).
• ² Equal Employment Opportunity Commission, Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA (2002).  
• ³ See, e.g., Myers v. Hose, 50 F.3d 278, 283 (4th Cir.1995) (observing that indefinite leave is not a required accommodation under the ADA); Carr v. Reno, 23 F.3d 525, 531 (D.C.Cir.1994) (“[T]o require an employer to accept an open-ended ‘work when able’ schedule for a time-sensitive job would stretch ‘reasonable accommodation’ to absurd proportions....”).  
• ⁴ U.S. Department of Labor, FMLA Frequently Asked Questions, available at https://www.dol.gov/agencies/whd/fmla/faq#8. 
• ⁵ 29 C.F.R. § 825.220(c).  
• ⁶ Kiman v. New Hampshire Department of Corrections, 451 F.3d 274, 283 (1st Cir.2006).
• ⁷ Schneider v. Giant of Maryland, LLC, 389 F. App'x 263, 270 (4th Cir. 2010) (“[T]he employee does not need to mention the ADA or use the phrase “reasonable accommodation,” but need … inform the employer of both the disability and the employee’s need for accommodations for that disability.”); 
• ⁸ See Schneider, at n. 7, supra; U.S. Department of Labor, Fact Sheet #28: The Family and Medical Leave Act (“When an employee seeks leave for a FMLA-qualifying reason for the first time, the employee need not expressly assert FMLA rights or even mention the FMLA.”).  
• ⁹ Hannah P. v. Coats, 916 F.3d 327, 346 (4th Cir. 2019).
• ¹⁰ U.S. Equal Employment Opportunity Commission, Applying Performance and Conduct Standards to Employees with Disabilities (2008).  
• ¹¹ Tyndall v. Nat'l Educ. Ctr., Inc. of Cal., 31 F.3d 209, 213 (4th Cir.1994) (“An employee who cannot meet the attendance  requirements of the job at issue cannot be considered a ‘qualified’ individual protected by the ADA.”).
• ¹² See n. 2, supra. 
• ¹³ U.S. Equal Employment Opportunity Commission, Press Release: Treehouse Foods to Pay $50,000 and Provide Benefits to Settle EEOC Disability Discrimination Suit (June 8, 2021); 
• ¹⁴ U.S. Equal Employment Opportunity Commission, The Family and Medical Leave Act, the ADA, and Title VII of the Civil Rights Act of 1964 (1995).