Many companies have no-fault attendance policies where employees are automatically issued “points” or “occurrences” for unexcused absences and tardies.  These policies generally allow exceptions for certain absences, such as vacations, Family and Medical Leave Act (FMLA) leave, absences due to an Americans With Disabilities Act (ADA) covered disability, and other approved time off. 

The U.S. Equal Employment Opportunity Commission (EEOC) has long attacked inflexible no-fault attendance policies that assess points for absences due to an employee’s disability, and has filed multiple lawsuits challenging such policies.  The EEOC’s position is that the ADA may require employers to modify attendance policies as a reasonable accommodation (absent undue hardship), such as allowing an employee to use accrued paid leave or unpaid leave, and adjusting arrival or departure times.

One of the many employment-related questions arising from the COVID-19 pandemic is whether an employee who is absent due to COVID, particularly an employee who has tested positive, should be issued attendance points for COVID-related absences.  As we stated in a recent Employment Law Update, at least one court has held that COVID can qualify as a disability under the ADA, depending on the severity of the person’s symptoms and whether the condition substantially limits a major life activity, which requires an individualized, case-by-case analysis.  If the COVID symptoms limit the employee’s ability to work, for example, the employee may be considered disabled under the ADA.  

The EEOC has stated that, depending on a specific employee’s condition, COVID-19 can qualify as a disability under the ADA if the employee’s medical condition or any of its symptoms is a “physical or mental” impairment that “substantially limits one or more major life activities,” which is always a case-by-case determination.  However, a person who tests positive but is asymptomatic, or a person whose COVID-19 results in mild symptoms similar to those of the common cold or flu that resolve in a matter of days or weeks (with no other consequences), will not qualify as disabled under the ADA. 

When assessing points or occurrences under an attendance policy, employers should carefully evaluate whether any of the absences are due to COVID-19 or a positive COVID test and whether the employee’s condition would qualify as a disability under the ADA.  If the employee’s COVID condition is a disability under the ADA, considering an exception under the attendance policy is advisable.