By Wm. Joseph Austin, Jr.

Many readers have heard the maxim that regular and predictable attendance is an essential function of all jobs. Others, reaching the same conclusion by exercise of good common sense, implicitly expect faithful attendance from their employees. Come on, who hires anyone not to show up? All would be surprised to learn that the point could be debatable in any way whatsoever.

Yet it is. On the one hand, attendance is an issue that perpetually plagues employers of all sizes. It is costly to the enterprise. Also frustrating is the nagging feeling the employer gets when he suspects the employee is playing hooky.

However, the law does not automatically take these factors into account. Case law places the burden on the employer to prove that regular attendance is an essential function of the job. That is, the attendance rule is not just a rote requirement but has a sound business basis. When challenged, the employer should therefore prepare to proffer evidence of the following:

• Demonstrate that the employer had a policy regarding absences.
• Introduce a job description establishing the required level of attendance.
• Show consistency in imposing disciplinary action for attendance problems.
• Prove the disruption and inconvenience to management and fellow workers alike in cases of unexcused absence and tardiness.

Under the North Carolina unemployment laws, an employee is disqualified from receiving benefits if the Division of Employment Security (DES) determines that the employee was discharged for “misconduct,” including on the face of the statute even a single occasion of violating the employer’s “written absenteeism policy.” However, North Carolina courts have held that not showing up or being tardy to work may constitute misconduct. Misconduct may not be found, however, if the

DES determines that an employee had good reason for not showing up to work or did not have reasonable control over his or her actions. Yes, excuses, excuses, but conventional wisdom does hold that violation of attendance rules is typically addressed with progressive discipline,

The same practices outlined above for establishing that regular and predictable attendance is an essential job function will also help an employer save itself some unemployment benefits. If an employee has violated an attendance policy that he was well aware of, and he has been given a chance to redeem himself through progressive discipline, then the DES is more likely to attribute the employee’s violation to misconduct. The legal definition of “misconduct” does include a version of the three­ strike rule (i.e., three reprimands in a twelve-month period). The mantra of communicate, document, and verify is worth repeating here.

The following is an overview of other laws that are implicated in attendance matters:

Americans with Disabilities Act (ADA)

The ADA covers employers with 15 or more employees. The ADA protects qualified individuals from discrimination on the basis of disability. To be qualified the individual, with or without reasonable accommodation, must be able to perform the essential functions of the job, the typical context for the discussion in the introduction of this paper.

The EEOC has taken the position that attendance is not a per se essential job function. Hard and fast rules and one-size-fits-all policies are antithetical to the ADA regime that valorizes individualized assessment and interactive process.

Pitfalls thus lurk in the so-called “no fault” attendance policies. Under such policies, employees are assessed points for absences, and accumulation of a prescribed number of points results in termination of employment. The busy HR director may like this system, but problems under the ADA may arise if there is no accommodation for “disability-related absences,” a concept taken up below.

A no-fault attendance policy, relentlessly applied, treats all absences the same. After a threshold has been crossed, they all count as unexcused regardless of the reason, good, bad, or no reason given at all. Typically, the no-fault attendance policy then provides for automatic job action, up to termination, after accumulation of a set number of absences within the specified period of time.

To avoid trouble the policy should differentiate for, and place certain absences in a protected status, such as statutorily protected occasions when the time­ off would qualify as an ADA accommodation. To avoid liability under the ADA, the employer should track the reasons for absences, tardiness, and so on, to manage the risk that an ADA “disability-related absence” is not counted against the employee.

If a penalty does apply to an employee with a disability who requires the time off as an accommodation, in order to count it against the employee the employer will have to show undue hardship. As in all undue hardship situations under the ADA, the determination is based on facts and circumstances, including the nature and cost of the accommodation, financial and other resources available to the employer, and the effect or impact of the accommodation on the employer’s operations.

No-fault attendance policies are attractive to employers because they are relatively easy to administer. Administrative inconvenience alone will be insufficient to constitute undue hardship, however.

The stakes can be astronomical. In 2011, Verizon Communications paid $20,000,000 to settle a nationwide disability suit based on its history of terminating or disciplining hundreds of employees based on a rigidly applied no-fault attendance policy.

The Devil Is in the “Telework”

As technology improves, and more workers look for flexible work alternatives, remote work and telecommuting have gained in popularity. The easier it is for an employee in a given position to work at home, the more likely it is for a court to find that attendance at a particular location is not an essential function of the job. Whether a digression or a variation on the theme of attendance, here is another ADA wrinkle.

The Sixth Circuit, en banc, decided that telework was not a reasonable ADA accommodation in EEOC v. Ford Motor Co. 782 F.3rd 753 (6th Cir. 2015), overturning the decision of a divided panel that previously held telework was a reasonable accommodation, 752 F.3d 634 (6th Cir. 2014). In a split decision, a Sixth Circuit majority initially held that “the law must respond to the advance of technology in the employment context… and recognize that the ‘workplace’ is anywhere an employee can perform her job duties.” Physical presence as an essential function was a “highly fact-specific” question that a jury should decide, according to the first divided panel. This decision was then taken up by the Sixth Circuit en banc, which held that the employee was not qualified under the ADA because her excessive absences prevented her from performing the essential functions of the job, and her requested accommodation, working remotely up to four days per week, was unreasonable for her position.

This case is still fair warning to employers. Sociological forces are at work. In vogue in modern America is the allure of working at home in one’s pajamas. Time will tell, but, caveat employer, an all-encompassing policy that makes attendance an essential function of every job will be second-guessed. Forewarned is forearmed:

• Employers can have positions that require the employee to be in the office to perform the essential functions of the job but must evaluate all the underlying circumstances of a request to work remotely.
• Where the employer has clear policies and accurate job descriptions that are consistently enforced and applied, as did Ford, courts are more likely to give greater deference to the employer’s assessment of the job’s “essential functions.”
• Ford met with the employee several times, identified alternative accommodations, and attempted to engage in additional discussion even after its alternative accommodations were rejected. Ford thus demonstrated that it engaged in an interactive process.

Family and Medical Leave Act (FMLA)

The FMLA covers all employers with 50 or more employees within 75 miles of an assigned duty station. Generally speaking, the FMLA allows a qualifying employee to take up to 12 weeks of leave during any 12 month period for a “serious health condition.” A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a healthcare provider and includes any period of incapacity or treatment for the incapacity. Included in this definition are chronic conditions requiring periodic visits or treatments by a healthcare provider.

An illness that takes an employee out of work for three days may signal a serious health condition under the FMLA. Taking job action against an employee for missing work in such circumstances may expose the employer to a charge of interfering with the employee’s FMLA rights. For employers with no-fault attendance policies, the same amber warning light should illuminate potential FMLA absences as in the case of “disability-related absences.”

Pregnancy Discrimination Act

The   Pregnancy Discrimination Act prohibits discrimination against employees on the basis of pregnancy, child birth, or related medical conditions. Pregnant women must be treated the same as other employees not affected by pregnancy but similar in their inability to work. Employers must think twice about taking job action against pregnant women for attendance issues if employees with other problems would be accommodated. Pregnancy does not create hyper protection per se, but disciplinary action for absence due to related conditions will be scrutinized for disparate treatment as compared with other employee absences.

Conclusion

From the employer’s point of view, it should go without saying that regular attendance is an essential function of any job. The courts will not allow employers to fall back on a job requirement that is merely notional however. Rules of the road have been handed down by the courts and government agencies that will allow employers to navigate through this hazardous intersection of the law and the workplace.