No Fault Attendance Policies May Violate the ADA

The EEOC has always held the opinion that the “no-fault” attendance policies that many employers have in order to get rid of their sick or injured employees after a set length of time (some have 6 month or 12 month policies) can violate the ADA.  However, the  problem with enforcing that as a violation was that before the Americans with Disabilities Amendments Act (ADAAA) which went into effect 1/1/09, the federal courts shot down almost every case by ruling that the person was not disabled in order to qualify for protection.  Under the ADAAA, the federal courts were instructed by Congress to lower the bar and not make it so difficult for a person to be classified as disabled under the ADA.  So, now many individuals with disabilities are  protected and  many of the “no-fault” attendance policies violate the ADAAA because the company does not consider extensions of leave, as a reasonable accommodation, as they should. The EEOC states that an employer must consider holding a job open for a reasonable time for a person with a disability (say a person off with cancer) if the company can hold it open without it being an “undue hardship”.  And, it is the company’s duty to prove that it would be an undue hardship.  If the company cannot hold it open, then they must consider another equal or lower job which is open.  If there is no open job, then they can fire the employee.