Attendance policies must be written so as to avoid discrimination claims by employees with FMLA and ADA rights.
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FMLA AND ADA UPDATE:
Employer Attendance Policies
Can Lead To Liability Under FMLA and ADA
By Christopher W. Olmsted
In this issue we focus on the concept of the common employer practice of attendance/absence point systems. If you have such a system, it is important to ensure that it does not run afoul of the FMLA and ADA. Two recent cases reported below illustrate the possible pitfalls. After reading these articles, review your policies and determine whether you need an update.
Part I
No Violation of FMLA
For Denial of Leave Under Employer’s No Fault Attendance Policy
A recent federal Seventh Circuit Court of Appeal case titled Bailey v. Pregis Innovative Packaging, Inc. considered the following FMLA questions: (1) An employee must work 1,250 hours in 12 months in order to qualify for FMLA leave. If the employee falls short of this minimum, can she still qualify for leave? (2) The FMLA forbids employers from using the taking of FMLA leave as a negative factor in employment actions, such as disciplinary actions. Does a no fault attendance policy discriminate against FMLA leave if it takes affected employees longer to erase “points”?
Too Many Points Leads To Termination
Pregis Innovative Packaging has a “no-fault” attendance policy. Employees receive points for absenteeism during a 12-month period. If an employee receives more than 8 points, she is subject to termination.
Ms. Bailey took two absences in July 2006 and this caused her to exceed the 8 point limit. The company terminated her on account of the excessive absences.
Ms. Bailey contended that she should not have received points for the July 2006 absences because the absences covered by the FMLA. She contended that the company was not entitled to count those protected absences against her.
The company contended that she was not eligible for FMLA coverage because she had not worked enough hours in the preceding 12 months (she had worked fewer than 1,250 hours). Ms. Bailey countered that the reason that she had not worked 1,250 hours was that she had been on FMLA leave for 56 of the days. She argued that the company ought to count the hours she worked during the 56 days prior to the 12 months preceding her leave.
The company went ahead with the termination. Ms. Bailey sued, alleging a violation of her FMLA rights.
Employers May Not Penalize Employees For Taking FMLA Leave
If the employee was in fact entitled to FMLA leave for the two July 2006 absences, then assessing attendance points would have violated the FMLA.
Employers cannot use the taking of FMLA leave as a negative factor in employment actions, such as hiring, promotions or disciplinary actions; nor can FMLA leave be counted under “no fault” attendance policies. The statute could not guarantee reinstatement and other rights if FMLA absences could be held against employees.
No Exception to 1,260 Hour Rule
In order to become eligible for FMLA-protected leave, an employee must have worked at least 1,250 hours during the 12 month period preceding the start of the protected leave.
Are there any exceptions to the 12 month rule? Not in this case. The appellate court rejected Ms. Bailey’s argument that the 12 month rule can be stretched to longer periods where the employee doesn’t meet the 1,250 hour minimum on account of FMLA time off.
The appellate court wrote: “There is no basis for such a contortion of the statute—no hint in the statute or elsewhere that Congress envisaged and approved such a circumvention of the requirement that an applicant for FMLA leave have worked 1,250 hours in the preceding 12 months.”
No-Fault Attendance Point System Complies With FMLA
The court also rejected the employee’s argument that the company retaliated against her for exercising her FMLA rights.
As with most employment laws, the FMLA prohibits an employer from retaliating against employees who exercise their legal rights. The FMLA provides that “it shall be unlawful for any employer to interfere with, restrain, or deny the exercise of or the attempt to exercise any right provided under” the statute.
Ms. Bailey contended that the attendance policy unfairly treated people who take FMLA leave. Under the no-fault attendance policy, a point is erased after twelve months of work. But time on leave does not count towards 12 months of work. Therefore it takes someone like Ms. Bailey, who has taken FMLA leave, longer to wipe the slate clean than it would take an otherwise similar employee who had not taken FMLA leave in the preceding 12 months. Ms. Bailey cried fowl.
The court queried whether this right to erase points is an employment benefit within the meaning of the Act? The Act defines “employment benefits” as “all benefits provided or made available to employees by an employer, including group life insurance, health insurance, disability insurance, sick leave, annual leave, educational benefits, and pensions.” As the list of “employment benefits” is not exhaustive, the court decided that the fact that it does not mention removal of absenteeism points has no significance. And the word “all” suggests that “employment benefits” should include the removal of absenteeism.
However, the system for removal of absenteeism doesn’t violate the FMLA. The FMLA states that leave “shall not result in the loss of any employment benefit accrued prior to the date on which the leave commenced.” The court observed that if removal of absenteeism points (commonly though misleadingly called “attendance points”) is an employment benefit, it is one that accrues 12 months after an absence. Until then the employee has no right to have an absenteeism point removed. An employee who worked for 11 months and was on leave the other month (say he began work on January 1 and was still employed on December 31, but was on leave during the month of July) cannot add the month that he was on leave in order to obtain a benefit available to an employee who worked for 12 months rather than 11, because the employee is not entitled to “the accrual of any . . . employment benefits during any period of leave.”
“An employee must not be penalized by being deprived, just because he is on family leave, of a benefit that he has earned (i.e., that has accrued to him) by working,” noted the court. “But by the same token he cannot, when on family leave, accrue benefits that accrue only by working.”
“An employee does not accrue absenteeism forgiveness when on leave, because that is a reward for working. The defendant’s no-fault attendance policy is a lawful method of determining whether an employee has, despite absences, a sufficiently strong commitment to working for his employer to wipe an absence off his record. The plaintiff failed to demonstrate that commitment.”
Practical Tips:
Don’t Penalize. Attendance policies must be carefully drafted, and managers carefully trained, to avoid penalizing employees for taking protected FMLA leave. FMLA leave should not “count” against the employee.
Ensure Equal Application. As long as employees are not penalized for taking FMLA leave, generally it is lawful to equally apply a point system attendance policy, even leave time does not add to the time needed to erase points. Again, careful policy drafting and management training is needed to ensure compliance.
Related Articles
FMLA Update: Who Decides Whether Employee Is Sick Enough For Leave?
Not All FMLA Leave Rules Apply In Calfornia
PART II
Violation of ADA Found
Despite Airline’s Use Of No Fault Attendance Policy
A point-based no fault attendance policy does not shield employers from liability if it is not properly administered. When the employer makes exceptions, it leaves an opening for discrimination claims.
Flight Attendant Grounded After Accumulating Points
Like the employer in titled Bailey v. Pregis Innovative Packaging, Inc., the employer Carmona v. Southwest Airlines Company (a federal Fifth Circuit case) had a point based attendance policy.
Mr. Carmona was diagnosed with psoriatic arthritis. Psoriatic arthritis causes painful swelling and stiffness in the joints during attacks of psoriasis on the surface of the skin. During flare-ups of his psoriatic arthritis, Carmona cannot walk or move around without great pain. It also makes it harder for him to sleep. Mr. Carmona’s psoriatic arthritis flares up three or four times every month, and each flare-up lasts for three or four days.
A collective bargaining agreement called for flight attendants to accrue points for various types of attendance lapses, such as calling in sick, failing to show up for a flight without advance notice, or failing to report to scheduling. Different types of lapses result in the accrual of different numbers of points. Points do not remain on the flight attendant’s record permanently. All points that are more than sixteen months old are automatically “rolled off.” If a flight attendant does not accrue any points during a calendar quarter, his running total is reduced by two. Points are not assigned for absences that result from approved FMLA leave.
Mr. Carmona was frequently absent on account of his psoriatic arthritis. The absences were covered by FMLA leave for a time, but he reached a point where he was not eligible for further FMLA leave on account of not working enough hours. His accumulated points for additional absences not covered by the FMLA, until his point total caused Southwest to terminate him.
Not So Fast…What About ADA?
Like the plaintiff in Bailey v. Pregis Innovative Packaging, Inc., Mr. Carmona lost eligibility for FMLA leave. But he claimed that Southwest discriminated against him on account of his physical disability under the ADA.
Employers should remember that the FMLA is not the only federal statute offering leave rights. Under the ADA, employees may be entitled to time off as a “reasonable accommodation” of the employee’s physical or mental disability.
Employee Qualified For Job, Despite Poor Attendance
In this case, the employer argued that Mr. Carmona was not entitled to ADA protection because he was not qualified for his job. The ADA offers protection to employees only if they are a “qualified individual with a disability,”
The ADA defines the term “qualified individual” as an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires.
Southwest argued that Carmona could not have established that he was qualified for his job because many courts have held that regular attendance is a necessary qualification for most jobs, and Carmona’s disability prevented him from attending his job regularly.
The court rejected this argument because (1) before he lost eligibility, the airline had granted him intermittent FMLA leave, allowing him to miss over half of each working month without notice (note: the court’s reasoning here is dubious and may not be followed by other courts); and (2) Southwest waived this argument because it did not assert at trial that it had terminated Carmona because his disability prevented him from showing up to work consistently on his scheduled days. Instead, Southwest argued that it terminated him because it believed that he had violated its attendance policy.
Company’s Inconsistent Policies and Practices Foils Its ADA Defenses
The company contended that it terminated Mr. Carmona for violating the company attendance policy, which is a nondiscriminatory reason for the adverse action. But under the court’s scrutiny, this defense did not hold up.
At trial, Mr. Carmona introduced evidence in the form of documents and testimony that five other flight attendants had reached or exceeded twelve attendance points without being terminated. His attorney argued that if he hadn’t been disabled, he would have kept his job like the five other flight attendants.
Southwest argued that none of these employees’ situations were similar to Carmona’s. A manager testified that the employees were not terminated, even though they reached or exceeded twelve attendance points, because in a procedural glitch, the notices were not timely issued.
This defense had holes. The discipline documents themselves stated that they had been timely noted, and apparently the jury believed the documents over the manager’s testimony.
Southwest also argued that the employees whose records were introduced were not proper comparators for the purpose of establishing discrimination, because Mr. Carmona did not offer any proof that these women were individuals without disabilities. The logic behind this argument is that if these women were also disabled, but allowed to keep their jobs, then no reasonable jury could have inferred that Carmona’s disability was a motivating factor in his discharge.
The court rejected this argument because it was Southwest’s burden to produce evidence supporting this defense, and it had failed to provide any evidence that the other employees in question were disabled.
Manager’s Negative Comments Create Inference Of Discriminatory Motive
According to the appellate court, the cherry on top of Mr. Carmon’s discrimination claim was evidence of his managers’ negative remarks about his absences.
One manager characterized Carmona’s attendance record between 2003 and 2005 as “one of the worst ones that we had,” noting that “roughly 40 percent of the time that’s represented on the calendar is sick time.” However, the manager admitted that the vast majority of these absences could not be counted against Carmona because of his intermittent FMLA leave and his doctors’ notes. Another manager testified that Mr. Carmona’s attendance was “extremely poor.”
The appellate court concluded: “All things considered, a reasonable jury could properly infer that, when Carmona’s record eventually indicated that he had exceeded twelve points, his supervisors jumped at the chance to terminate him and did everything they could to ensure that his points would still exceed twelve after his pre-termination review, even though leniency had been granted to similarly situated employees who were not disabled.”
This was enough to tip the scales of justice in favor of the employee. “Though, as stated, the issue is a close one,” wrote the court. “We ultimately conclude that a reasonable jury could have found Southwest’s proffered explanation for Carmona’s discharge was false and that the true reason was his disability.”
Practical Tips
Think ADA. Remember that even where employees are not eligible for FMLA leave, they may be entitled to time off as “reasonable accommodation” under the ADA. The ADA standard is more ambiguous than the FMLA and professional/legal advice is recommended when ascertaining eligibility for such a leave.
Apply Equally. A disabled employee may be subject to a company’s attendance policy, but a company cannot apply that policy differently to disabled and non-disabled employees. An unevenly administered attendance policy or other personnel policy can expose an employer to an inference of discrimination, even where the employer has no such intent.
Seek Consistency. Inconsistencies between disciplinary records and supervisor’s comments regarding discipline can also create an inference of discrimination.
Watch Phraseology. Incidental remarks commentary regarding an employee’s attendance habits may also come back to haunt an employer. Supervisors should not express, or even form opinions regarding FMLA or ADA protected leaves. This simply creates an inference that the supervisor has a problem with disabled employees or employees who exercise leave rights.
Related Articles
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Download entire May 2010 Legal Update in PDF format.
This article is intended as a brief overview of the law and are not intended to substitute as legal advice. Any questions or concerns regarding any statute or case law should be addressed to a licensed attorney. Copyright © 2010 by Barker Olmsted & Barnier, APLC. San Diego, California. All rights reserved.
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