If you have been in HR for any time you know that there is a misperception that everyone has to be treated the same in order to be “fair.” If only it were that easy. Employees bring different circumstances to every situation therefore the HR person has to consider those circumstances. The EEOC realizes this and is now suing employers who do not recognize this fact.
One of the biggest areas that many companies have tried to be fair and objective with is in attendance. Rather than leaving attendance up to the subjective opinion of supervisors they institute a point system for absences that does not regard the reason for the absence. It is totally objective, you are absent you get a point. If you reach a certain number of points you get disciplined, up to and including termination. Ah, the perfect system, no subjectivity and everyone is treated the same. Unfortunately the EEOC does not see it that way.
The EEOC reminds employers that people with disabilities are eligible for a reasonable accommodation. Often people with disabilities experience absences associated with their disability. In our “fair” attendance policy these people get counted with an absence as does anyone else that is out sick. The EEOC says a big “NO” to that process. One of the reasonable accommodations the EEOC says should be considered is an alteration of the policy for people with disabilities. If you don’t make such an accommodation the EEOC may be on your door step asking why, as one company found out.
According to John Bagyi, of Bond Schoeneck & King, the EEOC announced a $1.7 million settlement with an Illinois based company. The company “maintained policies under which attendance points were issued for medical-related absences.” The company had to pay up and also revise their policy to allow for disability related absences. The EEOC District Directory said “Employers need to get this message: Inflexible, strictly enforced leave policies can violate federal law. . . . As an employer, make sure you have exceptions for people with disabilities and assess each situation individually.”
Family and Medical Leave is another area where attendance policies can get you in trouble. Absences related to FMLA that is taken in small increments can also not count against the employee.
Everyone needs to review their policy and insure that the definition of “fair” is not written as “everyone gets treated exactly the same.” Some judgment needs to be incorporated, whether this judgment is exercised by HR or the employee’s supervisor. If you are leaving it to the supervisor make sure they have some training in the difference between judgment and subjectivity. Remember “fair” does not equal “same.”