Caught Between Scylla and Charybdis: Navigating a Course Between Attendance Policy Enforcement and ADA Compliance¹

In recent years, the U.S. Equal Employment Opportunity Commission (EEOC) has been aggressively investigating and litigating claims involving the application of local and national company attendance policies. In 2011 alone, the EEOC recovered $27.1 million for ADA claimants, $20 million of which involved a high-profile challenge to a single employer’s no-fault attendance policy. Employers thus find themselves in a quandary, seeking to balance those operational needs associated with ensuring that their employers report for work as scheduled and running afoul of the Americans with Disabilities Act (ADA). Two recent decisions—one addressing the propriety of a no-fault attendance policy and the other considering an employer’s requirement that employees provide a detailed medical excuse for illness-related absences— provide some helpful guidance for employers looking to chart a safer course.

Newsflash! Regular and Reliable Attendance Is, in Some Cases, an Essential Job Function

Many employers have learned the hard way that “no-fault” does not mean “no-risk” when it comes to disability discrimination claims challenging the application of attendance policies. Under these types of policies, employees accumulate occurrences of absences from work regardless of the employee’s reason for the absence (excluding FMLA leave, jury duty leave and other required exceptions). Once an employee exceeds the maximum allowable number of absence occurrences, his or her employment is terminated—no questions asked. Many employers believe that these no-fault policies are the best way to implement an evenhanded approach for rewarding employees for good attendance and disciplining employees for poor attendance.

The EEOC, however, has taken a dim view of such policies under a theory that employers have affirmative duty under the ADA to accommodate qualified individuals with disabilities who for one reason or another cannot reliably report to work. To comply with the ADA, the EEOC often contends that employers may need to grant additional absences or leave time beyond the maximum amount otherwise permitted by company policy to those employees who are unable to comply with the policy. The EEOC thus instructs employers to modify their policy language to allow for such flexibility.

This obligation presents challenges for employers whose business operations demand regular, dependable attendance from their employees. Fortunately, a recent Ninth Circuit Court of Appeals (Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington) decision provides support (and guidance) to employers seeking to defend against attendance policy attacks. In Samper v. Providence St. Vincent Medical Center (9th Cir. 2012), the plaintiff was a neo-natal intensive care unit nurse with a disability who was entitled to as many as five unplanned absences per year (in addition to a host of other permissible absences) yet still often exceeded the policy maximum—sometimes for reasons unrelated to her condition. Providence made exceptions to its policy on multiple occasions and generally bent over backwards to accommodate her.

When Samper asked Providence to accommodate her disability by exempting her from the attendance policy altogether and providing her with an unlimited number of absences, Providence declined, and it eventually terminated her employment for repeatedly exceeding the number of permitted unplanned absences. Samper sued, claiming Providence failed to provide her with a reasonable accommodation, in violation of the ADA.

Addressing the issue head-on, the Ninth Circuit stated: “This case tests the limits of an employer’s attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really is essential.” The court held that regular attendance was an essential function of Samper’s job because her physical presence was required for teamwork, face-to-face interaction with patients and their families, and working with on-site medical equipment. Focusing on the very nature of a neo-natal intensive care nurse’s work, the court further asserted that Samper’s “regular predictable presence to perform specialized life-saving work in a hospital context” was particularly essential.

Notably, in its analysis, the court examined and took into account Providence’s written job description for the nursing position. According to the job description, the position required strict adherence to the attendance policy and specifically identified “attendance” and “punctuality” as essential job functions. Given that Samper could not perform these essential functions—with or without a reasonable accommodation—she was not a “qualified” individual with a disability, and therefore she was not protected by the ADA. As to her request to simply be exempt from the attendance policy, “Providence was under no obligation to give Samper a free pass for every unplanned absence.”

Although the court took special care to limit its ruling to the essential functions of neo-natal intensive care nurses at Providence, employers in a variety of industries can glean important lessons from Samper:

• Employers must remember that the EEOC and the courts may still expect some level of flexibility in attendance policies. No-fault policies should be updated to allow for exceptions when appropriate under the ADA.
• If regular, dependable attendance and punctuality are truly essential to a particular position, a written job description should accurately reflect that fact.
• Even if attendance is an essential job function, employers should still engage in a good–faith interactive process to determine if they can provide a reasonable accommodation to a qualified employee with a disability without undue hardship to the employer. However, as the Ninth Circuit stated, “an accommodation that would allow the employee to simply miss work whenever she felt she needed to and apparently for as long as she felt she needed to as a matter of law is not reasonable.”

Although Samper provides employers with some good news amidst the EEOC’s recent crackdown on attendance policies, employers should continue to administer their policies with caution. The ADA often presents a host of complex legal issues when dealing with employee attendance and leave situations, and employers would be prudent to consult legal counsel before taking any significant actions against employees.

Attendance Policy Requiring Employees to Identify the Medical Reason for a Health-Related Absence May Violate the ADA

Another issue that perplexes some employers involves how much information an employer can request from an employee who takes a health-related absence.

The ADA permits employers to “make inquiries into the ability of an employee to perform job-related functions,” but it prohibits employers from “mak[ing] inquiries of an employee as to whether such employee is an individual with a disability or as to the nature or severity of the disability, unless such examination or inquiry is shown to be job-related or consistent with business necessity.” 42 U.S.C. § 12112(d)(4)(B), (D).

In EEOC v. Dillard Store Services, Inc. (S.D. Cal. 2012), the court found that an attendance policy requiring the employee’s health care provider to identify the medical reason for an absence from work may violate the ADA. The policy at issue required employees to identify the medical condition for which they sought an excuse for a health-related absence. Dillard claimed that it simply sought a general diagnosis (e.g., migraine, high blood pressure, etc.) and not necessarily any further detail. The company argued that it required the nature of the medical condition to verify the legitimacy of the absence and to ensure that the employee could safely return to work without posing a threat to the health or safety of others.

The court disagreed, finding that a note from a medical provider verifying in writing that the employee has a medical condition which requires her to be out of work and also specifying when the employee may return to work is sufficient to verify that an employee’s absence is health related. To require an employee to provide further detail about the nature of the condition is an impermissible disability-related inquiry under 42 U.S.C. § 12112(d)(4)(A).

The court’s decision gives guidance to employers, clarifying that, while it is permissible to require a doctor’s note for a health-related absence, the employer should not seek further detail about the nature of the medical condition when seeking to categorize the absence as excused under an attendance policy. Employers should review their attendance policies to ensure they do not require more detail about the nature of an employee’s absence and should advise supervisors to avoid seeking greater details concerning the reasons for a health-related absence from work.

Keep in mind that employee requests for accommodations for disabilities or for medical leave under the Family and Medical Leave Act may allow for further inquiry and should be considered separate from a general attendance policy.

¹ Scylla and Charybdis were mythical sea monsters on opposite sides of the Strait of Messina between Sicily and the Italian mainland. They were close enough to each other that they posed an inescapable threat to passing sailors; avoiding Charybdis meant passing too close to Scylla and vice versa. The authors do not intend to suggest that the EEOC is a monster, from the sea or otherwise.

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