Can employers apply a no-fault attendance policy?
No. If an employee with a disability needs additional unpaid leave as a reasonable accommodation, the employer must modify its “no-fault” leave policy to provide the employee with the additional leave, unless it can show that: (1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship. Modifying workplace policies, including leave policies, is a form of reasonable accommodation. From Reasonable Accommodation and Undue Hardship (EEOC Guidance) at http://www.eeoc.gov/policy/docs/accommodation.html. b. Can employers have 100% restriction-free policies? According to informal guidance from the EEOC, requiring an employee to be 100% restriction-free can violate the ADA when applied to an employee with a disability. Although some courts have characterized such policies as per se violations of the ADA, most courts require that the employee meet the definition of
