Last week the EEOC held a meeting to discuss employers’ accommodations of disabilities by offering leaves of absence or more lenient sick time policies.
Before Congress amended the Americans with Disabilities Act to counter extremely narrow court interpretations, it was commonplace for courts to hold that attendance was an essential function of most jobs. Therefore disabled employees who could not meet the standards for attendance, especially those not covered by the Family and Medical Leave Act, were often denied a remedy in court. This result held despite the EEOC’s guidelines urging employers to offer paid or unpaid leave as an accommodation to a disabled worker.
Given the accelerating use of technology, and the strides taken to separate employees from a central workspace, the requirement of on-time attendance is no longer essential to many jobs.
Indeed, attendance in a specific place is often not required; many employees have no office other than their homes or cars, and many others can competently perform their jobs at least at times from home. Depending on whether the employee works in a team or mostly alone, the on-time requirement may be arbitrary, where the disability itself, or the need to attend doctor’s appointments, prevent regularly arriving at 9:00 a.m. The use of across the board pronouncements about attendance therefore has to be replaced with an in-depth look at the actual job requirements, and the ability to accommodate a disabled worker’s needs.
The EEOC takes a critical look at employers using “no fault” attendance policies, in which a certain number of occurrences, or strings of absences, leads to termination, no questions asked. While the policy itself does not contravene the law, a refusal to reconsider it for a disabled worker can be an ADA violation. In addition, the EEOC considers that policies that automatically sever an employee who cannot return to work within the 12 weeks allowed under the FMLA may be violating the ADA. The ADA’s requirement of discussing the issue, and trying to arrive at a “reasonable” accommodation trumps the hard and fast rules.