It has become a “sign of the times” that many Employers, rather than attempting to negotiate the maze of potential Legal Issues with regard to Employee Absences for sickness, child care, etc., have gravitated to what has become identified as the “No Fault Attendance Policy”. Under a No Fault Attendance Policy, Employees are assigned certain points for absences regardless of the reason for those absences, and are terminated after they have accumulated enough points to generate termination and, in some cases, have exceeded the maximum number of days absent in a “No Fault Absence Policy” during a calendar or running twelve (12) month period. Employers believe that this is a very efficient way to maintain neutrality and to avoid asking people the reasons for their absences. Unfortunately, it seems that the Equal Employment Opportunity Commission is taking a very staunch position of disagreement with this concept.

In the case of EEOC v. Mueller Industries, Inc., Case No. 2:18-CV-5729-FW-GJS, the EEOC took Mueller Industries, Inc., a global metal goods manufacturer, to Court claiming disability discrimination. It charged that Muller had terminated Employees who had exceeded a maximum number of days absent and took issue with the fact that the “No Fault Attendance Policy” created a “systematic discrimination against Employees with disabilities in violation of Federal Law.” In point of fact, the EEOC took issue with the fact that the “No Fault Absentee Policy” did not allow the “individualized assessment” required under the Americans With Disabilities Act. Although the burden of raising the need for an accommodation under the ADA initially rests on an Employee, once that accommodation is requested or, in the alternative, the need for an accommodation has been identified, it is the responsibility of the Employer to initiate the interactive process (i.e. communication between Employer and Employee) to determine what the reasonable accommodation is. The EEOC is taking the position that under the “No Fault” concept, this “interactive process” does not occur and therefore, discrimination toward disables Employees occurs.

In the EEOC v. Mueller Industries, Inc. litigation, the parties have entered into a Consent Decree that will be in effect for 2 ½ years and applies to all Mueller Facilities nationwide. The Consent Decree requires Mueller to reinstate individuals who have been unlawfully impacted by the “No Fault Absentee Policy”; revise its policies and procedures with regard to ADA and appoint a specified Americans With Disabilities Act coordinator; provide training to all Employees about the ADA, and submit annual reports to the EEOC with regard to yearly activities.

All Employers who are currently operating under a “No Fault Leave Policy” that does not specifically require the Employer and disabled Employees to engage in the interactive process should take a look at their Absentee Policies and see if they need amendment. This is particularly of concern since the Americans With Disabilities Act is one of the six (6) national priorities identified by the Equal Employment Opportunity Commission in its recent strategic enforcement plan.

Questions? Contact Attorney Walter Liszka in our Chicago office at (312) 629-9300 or by email at waliszka@wesselssherman.com.