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February 23, 2012

Is Your Attendance Policy Compliant With ADA?

None of us want to believe our employees have taken advantage of our attendance policy.  We seek to demonstrate flexibility with our employees and encourage a healthy balance with work and life.  As hard as we try, it’s natural to be concerned: Careerbuilder’s latest annual survey shows that at least three in 10 employees have called in sick to work with a fake excuse in the last year.

While some employees are all too ready to share their unusual reasons for using sick leave – from a headache caused by attending too many garage sales to accidentally drinking anti-freeze – employers must be cautious when requesting documentation for sick leave.

The federal district court in California recently ruled that the Dillard’s retail chain violated the Americans with Disabilities Act (ADA) with its attendance policy.  The chain’s policy stated that any employee who missed more than four days per year unexcused was subject to termination, and employees were required to submit a doctor’s note that identified the underlying cause of their condition in order for the absence to be excused.

The subject in this case was an employee who was absent from work due to an illness for six days.  She provided her manager with a note from the doctor that stated she was to remain off work for the week, and could return the following week.  The manager would not accept the note because it did not identify the underlying reason for the absence.  The employee refused to provide any more information, and was supported by her doctor.  She was terminated for absenteeism.

The Court ruled that Dillard’s policy was unlawful because it permitted managers and the company to conduct inquiries related to disability in violation of the ADA.  Dillard’s argued it was a business necessity to require more detail in order to verify the legitimacy of excused absences.  The court rejected Dillard’s arguments, stating that it did not need to know the reason for the medical absence.  Prior to the case, Dillard’s had already amended their policy to remove the requirement of disclosure of specific medical conditions.

Best practice for employers:

  • When requesting a doctor’s note to support sick leave absences, outline a standard number of days after which you will require a note, such as three days.  The doctor’s note should only state the employee is under care by the doctor and the date he or she may return to work.
  • When a supervisor receives notification that an employee is sick, advise them to limit questions to those that relate specifically to the employee’s ability to perform his or her job responsibilities.  Even innocuous questions regarding an illness and those stated out of concern can be construed as discriminatory by a court.

Employment law attorney Abizer Zanzi has further opinion as to why this case is so significant:

“First, it is one of few opinions interpreting the ADA’s prohibition on disability-related inquiries.  As the court noted in its decision, only two federal circuits—not including the Seventh Circuit (which covers Illinois)—have addressed this issue in depth.  As previously reported, recent legislative and regulatory amendments expanding the definition of “disability” are expected to result in many more ADA cases being decided on the merits.  Second, the fact that the EEOC chose to prosecute this case reflects the agency’s current enforcement priorities, which are heavily focused on disability claims.”


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