How can an employer avoid absence-related disability discrimination claims?

Policies regarding tardiness and absence from work are generally based on business necessity and they are not likely to be discriminatory by their terms. The most common problem associated with tardiness and absence policies is inconsistent application. As with other rules, harsher enforcement against one employee than others can result in discrimination charges. Supervisors must be cautioned to monitor the activities of all employees equally and to treat all infractions in the same manner.

The biggest area of concern when enforcing absence polices is disability discrimination. If absences are a direct result of a qualified disability, an employer cannot discipline or terminate an employee solely for poor attendance unless it can be proven that regular attendance is essential to performing the job, and

That reasonable accommodation was attempted. However, if the employee's disability is not the cause of the absences, the employer may have a right to discipline or terminate the disabled employee without proving that attendance is essential or attempting reasonable accommodation. For example, if the absences are a result of a child care problem that is in no way related to the disability, the employer has the right to follow its standard absenteeism policy when dealing with the problem.