No-fault attendance policies may be on a watchlist for the U.S. Equal Employment Opportunity Commission.

A recent matter before the U.S. Court of Appeals for the Eleventh Circuit, EEOC v. Eberspaecher North America Inc., suggests that the EEOC is interested in how those policies work.

It seems the EEOC wants to determine if such policies potentially violate the Americans with Disabilities Act, and the agency may want to pursue that interest on a national scale.

The Background Facts and the EEOC Charge

Joseph White worked for Eberspaecher North America at its Northport, Alabama, facility. He complained to the EEOC that he was fired for taking Family and Medical Leave Act-protected absences.

According to the Eleventh Circuit's opinion, ENA has a point system to manage employee absences and tardiness. ENA's employee handbook provided that employees receive two points for unscheduled absences, and if an employee gets 10 points in a 12-month period, termination results. Per the handbook, employees would not get points for excused absences, including FMLA-covered absences.

White claimed that ENA gave him points for FMLA-covered absences, and he filed an EEOC charge alleging that ENA discriminated against him under the ADA.

Instead of simply investigating White's charge, the EEOC issued a commissioner's charge, charging the company with discrimination and retaliation under the Americans with Disabilities Act Amendment Act — which we will call the ADA — listing only the Northport facility's address in the charge.

As the Eleventh Circuit noted in its decision, although the EEOC does not have enforcement power in the FMLA realm, its theory was that ENA violated the ADA by "firing [White] for taking FMLA-protected leave which, the EEOC asserts, is a 'reasonable accommodation' required under the" ADA.[1]

The Investigation, Subpoenas and the Courts' Decisions

Initially, the EEOC investigation was about ENA's practices in Northport, where White worked. Later, the EEOC requested information about "each employee discharged from Respondent's locations nationwide ... for attendance infractions."[2]

ENA refused to provide information beyond the Northport facility, noting that the charge was specific to that facility. The EEOC and ENA went back and forth for some time and could not agree on the scope of the requests.

When an employer refuses to provide information in an investigation, the EEOC has statutory authority to issue an administrative subpoena.

According to the Eleventh Circuit's May 10 opinion, which quoted the statutory language, a "subpoena must 'describe with sufficient particularity the evidence whose production is required,'" and the EEOC will revoke a "subpoena after a petition if 'the evidence whose production is required does not relate to any matter under investigation.'"[3]

Armed with this authority, the EEOC issued a subpoena to ENA's corporate headquarters in Michigan, seeking the nationwide information.

ENA responded that the charge was about the Northport facility and petitioned to revoke the subpoena. The EEOC found that the petition was not timely and sought judicial enforcement with the U.S. District Court for the Northern District of Alabama.

The EEOC told the district court the charge was a nationwide charge, and it was entitled to the information. ENA told the district court that the subpoena was "too burdensome, indefinite, and had an 'illegitimate purpose' in that the EEOC sought a 'broadened investigation' outside the scope of the charge," and that it "should be limited to the Northport facility based on the plain terms of the EEOC's charge."[4]

The federal court in Alabama "ordered ENA to comply with the subpoena but only as it applie[d] to [the] Northport facility." According to the district court, if the commissioner wanted to bring a nationwide charge, she must state "her intent within the four corners of the charge," and the commissioner's failure to do so "limited the scope of her charge to the Northport facility."[5]

The EEOC appealed to the Eleventh Circuit.

The Eleventh Circuit upheld the district court's order. First, the EEOC argued that the charge alleged nationwide conduct. The Eleventh Circuit rejected this argument based on the fact that the charge named only the Northport facility. Although the EEOC could have amended the charge to allege nationwide violations, the court noted that it did not do so.[6]

Second, the EEOC argued that even if the charge was only about Northport, nationwide information was still relevant because it would "'allow the EEOC to identify any individuals ENA discharged following disability-related absences.'"[7]

The Eleventh Circuit disagreed, noting that "the EEOC's investigative authority is tied to charges filed with the Commission," and the charge it issued against ENA was against a single facility about penalizing employees for FMLA-protected absences.[8] The subpoena sought nationwide information on any attendance-related termination, which the court found was not relevant to the charge.

What Does This Bode for Employers

Although the Eleventh Circuit opinion is about the EEOC's subpoena power, this case could have significant repercussions.

First, the fact that the EEOC pursued this charge and sought nationwide information may signal that the EEOC is looking to make law related to the ADA, attendance policies and leave as a reasonable accommodation. White complained about FMLA issues, but an EEOC commissioner issued a charge to look at the potential ADA issues.

Also, even though ENA's handbook stated employees wouldn't get points for FMLA absences, an EEOC commissioner decided to pursue a charge about whether employees were being denied leave as a reasonable accommodation under the ADA.

Second, this was a commissioner charge, which means an EEOC commissioner, not simply an employee, filed the charge. Commissioner charges are not all that common, but they are on the rise. According to the EEOC's website, commissioners have signed 29 charges in fiscal year 2022, as compared to three charges each in fiscal year 2020 and fiscal year 2021.[9]

Clearly, one of the commissioners thought that this attendance and leave-as-a-reasonable-accommodation issue needed a closer look, and thought ENA was a good opportunity to do so.

Third, the EEOC may be more intentional about including nationwide allegations in charges going forward. The Eleventh Circuit acknowledged that the EEOC could have amended the charge to make nationwide allegations, but it didn't. In the future, the EEOC might simply amend the charge.

Finally, although the Eleventh Circuit's opinion does not really limit the EEOC's subpoena power — it simply says the subpoena has to relate to the charge under investigation — the EEOC may feel differently. Going forward, the commission might issue more subpoenas to establish its authority.

If this is a trend, employers should get ahead of it. Review attendance policies and make sure that protected absences are not getting lost in the shuffle, and that leave as a reasonable accommodation is considered. If the policy is clear, make sure management is administering it appropriately.

Republished with permission. This article, "Attendance Policies, ADA May Be In EEOC's Crosshairs," was published by Law360 on June 13, 2023.

[1] 11th Cir. Opinion, p. 2 of 30, Fn. 2.

[2] 11th Circuit Opinion, p. 6 of 30.

[3] 11th Circuit Opinion, p. 13 of 30, citing 29 U.S.C. §161(1).

[4] 11th Circuit Opinion, p. 8 of 30.

[5] 11th Circuit Opinion, p. 9 of 30.

[6] 11th Circuit Opinion, p. 16 of 30, Fn. 8.

[7] 11th Circuit Opinion, p. 18-19 of 30.

[8] 11th Circuit Opinion, p. 21 of 30.

[9] https://www.eeoc.gov/commissioner-charges-and-directed-investigations.