For the uninitiated, a no-fault attendance policy
terminates an employee who accumulates a pre-designated number of absences,
regardless of the reason. For employers with high-volume, high-turnover
operations, these policies make a lot of sense as the best tool to manage
employee attendance. They are not, however, without their risk. For example,
no-fault attendance policies cannot penalize absences that fall under the
protective umbrella of statutes such as the FMLA or the ADA. As
some employers have discovered, disciplining or firing disabled employees
under a no-fault policy can be a costly error.
What about employees on leave for a workers' comp injury?
Can an employer count those absence under a no-fault policy? According to one
recent Ohio appellate decision-Scalia v. Aldi, Inc. (12/21/11) [pdf]-the answer is
a decided maybe. The court concluded that it is not per se
retaliatory for an employer to terminate an employee on workers compensation
leave pursuant to a facially neutral attendance policy. The court remanded the
case back to the trial court to consider the issue of whether the
employer-through the application of its attendance policy- terminated the
plaintiff retaliation for instituting, pursuing, or testifying in a workers'
What does this mean? This means that the plaintiff cannot
rely solely on the attendance policy to prove retaliation, but must prove that
the employer's reliance on the attendance policy was a pretext for retaliation.
A uniformly applied attendance policy will go a long way to disproving this
pretext. As mentioned above, however, employers cannot apply attendance
policies to penalize employees on leave for FMLA or ADA reasons. Will this lack
of uniformity hurt employers in defending against workers' comp retaliation
cases? Or, can an employer lawfully treat FMLA-related and ADA-related absences
differently than workers' comp-related absences. Another court will have to
answer these questions in another case. As this case illustrates, employers
must tread very carefully when disciplining or terminating an employee who is
absent from work because of work-related injury.
Visit the Ohio Employer's Law Blog for more
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