Q&A: Can an attendance policy be applied only to certain employees?

We are looking into creating an attendance policy and considering our options. Can we apply the attendance policy to hourly employees only? Can we apply the attendance policy to all employees who work in a specific division?

Generally, there are no laws restricting employers from establishing attendance policies. However, as with all employment policies, employers must be sure to apply them in a consistent and nondiscriminatory manner.

Federal fair employment laws protect employees from discrimination based on age, race, color, sex (including sexual orientation and gender identity), pregnancy, national origin, religion, disability, and genetic information. Anti-discrimination laws recognize two types of discrimination. The terms “disparate impact” and “disparate treatment” both refer to practices that are discriminatory. The difference is that disparate impact discrimination usually occurs unintentionally, while disparate treatment discrimination is intentional.

Disparate treatment refers to intentional discrimination, where employees or potential employees are treated differently because they are a member of a protected class. Disparate impact occurs when policies, practices, rules, or other systems that appear to be neutral result in a disproportionate impact on a protected group. What matters is the outcome, not the intent.

The policy or action could appear to be completely neutral but still have a disparate impact when implemented, particularly if it could result in an adverse employment action such as employee discipline and termination.

You would want to be cautious if certain divisions and/or positions (i.e., hourly employees) compared to others which different policies are being applied are comprised primarily of members of a protected class. This is especially relevant if they are similarly situated (i.e., performing the same job function). When workers in seemingly identical jobs are treated differently, an employer leaves itself open to claims that the motivation for the different pay is discriminatory—particularly if the person who is receiving arguably less favorable treatment is a member of a protected class.

For example, beware of potential gender discrimination claims. Women often have had more childcare responsibilities than men and may disproportionately need flexibility in work hours to help balance professional and family needs. Are these departments located in different geographic areas? Often offices in certain geographic areas are compromised largely of employees of a particular race or national origin. You will want to be able to articulate a valid business reason for changing the attendance policy. ‘

When applying your attendance policy, you will want to be sure that you are meeting your obligations under the Americans With Disabilities Act (ADA) and the Family and Medical Leave Act. Employers should not penalize absences protected by the FMLA under its attendance policy. The FMLA regulations prohibit an employer from interfering with, restraining, or denying the exercise of, or the attempt to exercise, any FMLA right, as well as discriminating or retaliating against an employee for having exercised or attempted to exercise any FMLA right.

For example, women may utilize FMLA leave more frequently due to pregnancy. If an employee who needs to take FMLA leave is made to feel afraid to do so for fear of retaliation, this could be considered to be an FMLA violation.

Guidance from the ADA and EEOC

Note that under the ADA, employers may be required to modify attendance policies. According to the EEOC:

“19. Does the ADA require employers to modify attendance policies as a reasonable accommodation, absent undue hardship?

Yes. If requested, employers may have to modify attendance policies as a reasonable accommodation, absent undue hardship.71 Modifications may include allowing an employee to use accrued paid leave or unpaid leave, adjusting arrival or departure times (e.g., allowing an employee to work from 10 a.m. to 6 p.m. rather than the usual 9 a.m. to 5 p.m. schedule required of all other employees), and providing periodic breaks.[72]

20. Does the ADA require that employers exempt an employee with a disability from time and attendance requirements?

Although the ADA may require an employer to modify its time and attendance requirements as a reasonable accommodation (absent undue hardship), employers need not completely exempt an employee from time and attendance requirements, grant open-ended schedules (e.g., the ability to arrive or leave whenever the employee’s disability necessitates), or accept irregular, unreliable attendance. Employers generally do not have to accommodate repeated instances of tardiness or absenteeism that occur with some frequency, over an extended period of time and often without advance notice.[73]

The chronic, frequent, and unpredictable nature of such absences may put a strain on the employer’s operations for a variety of reasons, such as the following:

• An inability to ensure a sufficient number of employees to accomplish the work required;
• A failure to meet work goals or to serve customers/clients adequately;
• A need to shift work to other employees, thus preventing them from doing their own work or imposing significant additional burdens on them;[74]
• Incurring significant additional costs when other employees work overtime or when temporary workers must be hired.

Under these or similar circumstances, an employee who is chronically, frequently, and unpredictably absent may not be able to perform one or more essential functions of the job, or the employer may be able to demonstrate that any accommodation would impose an undue hardship, thus rendering the employee unqualified.[75]”

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