9/17/2023 0 Comments Attendance write up![]() ![]() The busy HR director may like this system, but problems under the ADA may arise if there is no accommodation for “disability-related absences,” a concept taken up below.Ī no-fault attendance policy, relentlessly applied, treats all absences the same. Under such policies, employees are assessed points for absences, and accumulation of a prescribed number of points results in termination of employment. Pitfalls thus lurk in the so-called “no fault” attendance policies. Hard and fast rules and one-size-fits-all policies are antithetical to the ADA regime that valorizes individualized assessment and interactive process. The EEOC has taken the position that attendance is not a per se essential job function. To be qualified the individual, with or without reasonable accommodation, must be able to perform the essential functions of the job, the typical context for the discussion in the introduction of this paper. The ADA protects qualified individuals from discrimination on the basis of disability. The ADA covers employers with 15 or more employees. The following is an overview of other laws that are implicated in attendance matters: Americans with Disabilities Act (ADA) The mantra of communicate, document, and verify is worth repeating here. The legal definition of “misconduct” does include a version of the three strike rule (i.e., three reprimands in a twelve-month period). If an employee has violated an attendance policy that he was well aware of, and he has been given a chance to redeem himself through progressive discipline, then the DES is more likely to attribute the employee’s violation to misconduct. The same practices outlined above for establishing that regular and predictable attendance is an essential job function will also help an employer save itself some unemployment benefits. Yes, excuses, excuses, but conventional wisdom does hold that violation of attendance rules is typically addressed with progressive discipline, ![]() Misconduct may not be found, however, if theĭES determines that an employee had good reason for not showing up to work or did not have reasonable control over his or her actions. Under the North Carolina unemployment laws, an employee is disqualified from receiving benefits if the Division of Employment Security (DES) determines that the employee was discharged for “misconduct,” including on the face of the statute even a single occasion of violating the employer’s “written absenteeism policy.” However, North Carolina courts have held that not showing up or being tardy to work may constitute misconduct. Prove the disruption and inconvenience to management and fellow workers alike in cases of unexcused absence and tardiness.Show consistency in imposing disciplinary action for attendance problems.Introduce a job description establishing the required level of attendance. ![]() Demonstrate that the employer had a policy regarding absences.When challenged, the employer should therefore prepare to proffer evidence of the following: That is, the attendance rule is not just a rote requirement but has a sound business basis. Case law places the burden on the employer to prove that regular attendance is an essential function of the job. However, the law does not automatically take these factors into account. Also frustrating is the nagging feeling the employer gets when he suspects the employee is playing hooky. On the one hand, attendance is an issue that perpetually plagues employers of all sizes. Come on, who hires anyone not to show up? All would be surprised to learn that the point could be debatable in any way whatsoever. Others, reaching the same conclusion by exercise of good common sense, implicitly expect faithful attendance from their employees. Many readers have heard the maxim that regular and predictable attendance is an essential function of all jobs. ![]()
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