Acme exerts its power under a no-fault attendance policy

An Acme employee sufferring from migraine headaches loses his position under a no-fault attendance policy. What could have Acme and the employee done to avoid such a situation?

During his recent tour of duty with the military, Les Nookham developed an acute sensitivity to sound levels that probably would not bother other people. He was a machinist and spent much of his assignment repairing vehicles using hammer, power saw and air tools. All in all, he worked in what he considered to be a noisy environment. It was purely a subjective judgment, but from his perspective, the sound levels could become head-splittingly loud. That’s why he was always asking the folks back home to send him those little foam ear plugs. He started carrying a Ziploc bag filled with them and always kept a pair jammed into his ears while on duty. Spending countless hours in a noisy environment is stressful, and he found the overseas experience to be physically exhausting and mind-numbing, even when he wasn’t performing manual labor.

Upon his return, he was grateful to find his old job in maintenance at the Acme plant waiting for him. He found it comforting to be among friends and familiar surroundings again. He especially appreciated the opportunity to apply himself to work that really made a difference. He had been settled in for a few months when the headaches began.

Over time, the occasional brain pain events progressed to severely debilitating migraine headaches a few times each month. The typical triggers for migraines include stress, bright lights or certain odors. For example, the sound and smell that accompany trying to enjoy an after-work brew with his friends at a noisy bar almost always made him nauseous, set his head pounding and made it necessary for him to leave almost as soon as he arrived. The resulting headaches were worse than a bad hangover, and it didn’t take a gin mill to set one off. The migraines happened when they happened, unpredictably. Even the beta-blockers that Ray Diem, his doctor, prescribed to combat the problem were an unreliable defense. On some mornings, it was all he could do to call his supervisor, Adam Baum, to announce he was taking a sick day.

Upon his return to work after his second such sick day, Adam pulled Les aside to explain a few things. “We’re a lean operation here,” Adam said quietly. “When you don’t show up, it burdens the department and the rest of the plant. That’s why we have a ‘no-fault’ attendance policy.”

“What’s that? What does it mean?” asked Les.

“Nobody can be absent or tardy repeatedly for any reason,” replied Adam, “regardless of the ‘fault.’ This includes medical excuses. We’re talking serious business here. Be careful. Company policy says that employees are subject to immediate dismissal for violations.”

“But, it’s not my fault I get migraine headaches, Adam,” Les argued. “I guarantee, they’re not something I welcome or endure voluntarily.”

“There’s also the matter of the point system,” added Adam. “HR assigns you an ‘occurrence’ if you’re absent, unless your situation fits some specified policy exception, which are darned few in number, that’s for sure. I already checked, and migraines aren’t on the list.”

“So,” asked Les, “how many of these stupid points can I accumulate and not get in trouble?”

“I think the current limit is 6.5 per calendar year,” answered Adam. “But, you can get one ‘occurrence’ subtracted from your total if you work two months without getting another one. Do you think you can do that?"

“I sure aim to try, Adam,” answered Les as he walked off to his work area.

But Les’ best laid plans didn’t work out quite the way everyone involved had hoped they would The series of prescriptions and medications Dr. Diem ordered were of limited help. Several times, Les tried to tough it out and come in to work when a headache had laid him low. On those days, everyone recognized that he was useless and ineffective, merely sitting at his desk in pain, trying to look productive while grouching at anyone who interacted with him. It was obvious to everyone that this valiant display of corporate esprit de corps and attendant public suffering weren’t going to work in the long run.

All in all, Les accumula- third of that was attributed to what he called stress attacks, which kept him out of work for a day at a time. There was no discernable pattern to the sick days, which occurred randomly.
But Les wasn’t the only one in his family with medical problems. A month later, he requested two days off to accompany his wife to the hospital for a series of surgical procedures she scheduled.

“You understand,” replied Adam, “that, if you’re going to be absent yet again, it will almost certainly set off all sorts of alarms in the HR department. There’s not much I can do to prevent it.”

“You’ve got to try, Adam,” replied Les. “What would you do if it was your wife who was going under the knife?”

“Can’t you have her take a cab?” Adam asked. “That’s what I’d do if I were in your shoes. Then, you could get to the hospital right after work. Besides, what are you going to do for medical coverage if you’re not working here any longer?”

“I’ve got to do the right thing,” Les said. “I’ll be out again for two days next week. Right now, the lady needs me more than I need to work under such insensitive regulations.”

“I can’t be complicit in this thing, Les,” said Adam rather firmly. “I’m telling you that you can’t have the time off.”

“Too bad, boss,” replied Les as he turned and walked away.

Les took his wife to the hospital. The following Friday, his pay envelope also contained a termination notice.

How could this situation have been avoided? What is a justifiable rationale for an employer to adopt a no-fault attendance policy? Can such policies be considered equitable, or are they too one-sided? Why? What strategy could one use to circumvent a no-fault attendance policy? Does Acme have any obligation to ensure that Les receives proper treatment for his migraines? How about an obligation to accommodate the headaches as a handicap?

A corporate consultant says:

If migraines constitute a handicap and Acme's terminating Les is actionable in court, then he has a shot here. However, frankly, unless Acme abandons its no-fault attendance policy, I don't see how this case could have been avoided.

If the policy is legal, and assuming replacement workers are easy to find, although it may seem harsh, there's no reason why Acme should endure Les' continued absences. Any exception Acme considers making for Les would have to be made for every employee, and if Acme doesn't enforce the policy consistently, it won't be taken seriously. And, as long as Les is legally competent, he's the one who's responsible for ensuring that he receives proper treatment for his migraines <em dash>--<em dash> not Acme.

If replacement workers aren’t readily available, this no-fault attendance policy doesn't seem to serve Acme very well. Acme might be better off considering flextime, job sharing, cross-training or other options for holding onto good workers, and to better withstand the absences of critical employees.
The issue of whether no-fault attendance policies are equitable seems irrelevant to me. Assuming such policies are legal, one chooses whether to take a job, and if the policy isn't acceptable to an applicant, there’s no compulsion to accept the job. I note in this case that Les wasn’t aware of the no-fault attendance policy. Although someone clearly dropped the ball during the employee orientation process, I doubt it would have made a difference in Les' decision to be with his wife for her surgery.

Francie Dalton
Dalton Alliances Inc.
(410) 715-0484
fmdalton@daltonalliances.com

An academician says:

No-fault attendance policies are designed to control tardiness, absences and leaving work early. They seem to be most prevalent in low-tech, low-skill, time-card manufacturing and assembling operations where employee attendance might be a problem. I’ve never seen the policy used in more professional, high-skilled, types of work. It would be interesting to see how software designers or medical personnel would react to such a policy.

The policy provides a formal process for dealing with absences and lateness, and seems to work quite well, although employees see it as pretty nit-picky. As long as the system is explained to the employee clearly and administered fairly, I don’t think it puts the employee at any disadvantage or subject to inequitable treatment. The case description of Les’ problems with Acme doesn’t really do justice to the scope and fairness of most no-fault polices. Usually exempt from chargeable occurrences are maternity leave, vacation days, sick days, bereavement, jury duty and others. Also exempt, and of particular interest in this case, are illnesses and family problems that fall under federal legislation (FMLA and ADA), as well as similar state regulations. That question is for others to decide.

Looking to how Acme might improve its process, every manager and employee must be fully informed about how the policies work. Some companies ask new hires to sign a statement acknowledging their understanding of the policy. Moreover, there needs to be an efficient tracking system in place that also flags unique Les-type problems quickly and assists the employee in addressing the problem. While Les’ problem wouldn’t be easy to resolve, I think it could have been handled to everyone’s satisfaction if Acme had such a process in place.

Professor Homer H. Johnson, Ph.D.
Loyola University Chicago
(312) 915-6682
hjohnso@luc.edu

An attorney says:

No-fault attendance policies, such as the one Acme adopted, are becoming more common. This approach allows an employer to apply even-handed discipline and discharges employees who aren’t at work on a consistent basis without making value judgments on the validity of an absence. Poor attendance is the most common reason employers discharge employees. Regardless of how well an employee performs the job, if one isn’t at work, they’re of no use to the business.

Even if migraines were considered a disability under the Americans With Disabilities Act (ADA), the act only requires an employer to accommodate an employee when the employee is able to perform the essential functions of the position. Virtually every court that has considered the issue has concluded that the ability to be at work on a regular and consistent basis is an essential function of every position. This means that, regardless of the job, an employee likely won’t have an ADA claim if the condition results in excessive absenteeism. Adam is out of luck under the ADA.

However, Acme has likely violated the Family and Medical Leave Act in refusing to give Adam leave for his migraines. Migraines are covered as a serious health condition under the FMLA, and Adam is entitled to up to 12 weeks of leave per year when this condition renders him unable to work. The leave can be taken intermittently in increments of a day or even less. While the FMLA requires that an eligible employee must have been employed for one year before the leave and worked 1,250 hours in that year, a returning serviceman is entitled to the benefits he would have been entitled to had he not been on military duty under the Uniformed Services Employment and Reemployment Rights Act, including eligibility for leave under the FMLA.

Because the FMLA protects an employee’s job for as many as 12 weeks of leave per year, an employer can’t use time off from work under the FMLA as a basis to discipline or discharge an employee for absenteeism. This is a mandatory exception under a no-fault attendance policy. In addition, Les was entitled to FMLA leave to care for his wife while she had surgery, which also is a serious health condition.

As a result, none of Les’ absences, either for his own migraines or his wife’s surgery, are absences for which Acme would legally discipline or discharge him. Either Adam should have read the no-fault attendance policy more carefully or Acme should have consulted an attorney when it drafted the policy.

Julie Badel, partner
Epstein Becker & Green, P.C.
(312) 499-1418
jbadel@ebglaw.com

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