What a no-fault point system is
A no-fault attendance policy manages absences without judging the reason for them. Each unscheduled absence, tardy, or early departure carries a set number of points, the points accumulate over a rolling or calendar period, and crossing a threshold triggers escalating discipline, from a warning to termination. The appeal is administrative: there is no investigating whether an absence was justified, no manager discretion to argue about, and the same rule applies to everyone. A typical structure might assign two points for an unscheduled absence and terminate at ten points in a rolling twelve months.
That neutrality is exactly what makes the systems popular with large employers, and exactly where the legal risk hides. A policy that treats every absence the same will, unless it is built to do otherwise, treat a legally protected absence the same as an unexcused one. That is the line that turns an efficient policy into a liability.
Some absences cannot be pointed
Federal and state law protect certain absences from discipline, and a no-fault system that points them is exposed regardless of how neutral it looks. The protected categories are well established, and a defensible policy has to exclude all of them from point accumulation. The carve-out is not optional, it is the difference between a lawful policy and an unlawful one.
The EEOC is watching these policies
The risk is not theoretical. The EEOC's largest settlement at the time, $20 million, came from a case against Verizon, whose no-fault policy counted absences toward discipline while making no exception for disability-related absences that should have been accommodated under the ADA. Verizon paid the settlement and was required to revise its attendance policies and train supervisors on the ADA. The lesson regulators drew, and the one they have kept applying, is that a facially neutral attendance policy is no defense if it disciplines people for protected absences.
More recent matters show the agency still pursuing this. In EEOC v. Eberspaecher North America, before the Eleventh Circuit in 2023, an employee alleged he received points for FMLA-protected absences despite a handbook that said FMLA leave would be excused. The EEOC's theory was notable: even though it does not enforce the FMLA, it charged the employer under the ADA, arguing that firing someone for taking FMLA-protected leave denied a reasonable accommodation. The case is a warning that a written exemption on paper is not enough if the system assigns the points in practice.
The guardrails that keep a point system defensible
The failures above share a root cause: the carve-out lived in the handbook but not in the process, so points got assigned to protected absences and a manager's memory was the only safeguard. A defensible system builds the protection in. The same controls also produce the documentation that wins a disciplinary defense if a termination is ever challenged.
None of this requires abandoning a point system. It requires building the legal carve-out into how the system runs, keeping clean records, and routing anything that looks protected to a human who knows the rules. Done that way, a point system reduces absenteeism without becoming the evidence in a lawsuit.
Where these figures come from
Primary sources
- EEOC, on the ADA and leave as a reasonable accommodation. The source for the position that a no-fault leave policy must be modified to provide additional unpaid leave as a reasonable accommodation, and for the Verizon settlement requiring revised policies and ADA training. eeoc.govChecked 24 June 2026
- EEOC v. Eberspaecher North America, Eleventh Circuit, 2023. The source for the matter in which an employer was alleged to have assigned points for FMLA-protected absences, and the EEOC's theory that doing so denied a reasonable accommodation under the ADA. eeoc.govChecked 24 June 2026
- U.S. Department of Labor, FMLA. The source for FMLA coverage generally applying to employers with 50 or more employees and the categories of leave the FMLA protects. dol.govChecked 24 June 2026
- ADA, employer coverage. The source for the Americans with Disabilities Act generally applying to employers with 15 or more employees and requiring reasonable accommodation for qualified individuals with disabilities. ada.govChecked 24 June 2026
Employment law on attendance, leave, and accommodation varies significantly by jurisdiction and changes over time, and individual situations turn on specific facts. This note is general information, not legal advice, and it does not cover every applicable law. Confirm the federal, state, and local requirements that apply to your workforce, and how to structure and apply an attendance policy, with qualified employment counsel before relying on any of this.
Tools for tracking attendance the defensible way
Track points with the carve-out built in, then size the cost
Common questions
Yes, but only if they exclude legally protected absences from the point count. A system that assigns points for FMLA leave, ADA-accommodated absences, workers' compensation, or state-protected sick leave is exposed to discrimination and wrongful-termination claims even though it looks neutral. The carve-out for protected leave is what makes the difference. Confirm the specifics with employment counsel.
Generally, absences protected by the FMLA (serious health conditions, family care, childbirth or adoption), the ADA (disability-related absences as a reasonable accommodation), workers' compensation, and state and local leave laws (paid sick leave, jury duty, voting, military, and in some places more). The exact list depends on your jurisdiction and employer size, so confirm with counsel.
Disciplining or terminating an employee for an absence that should have been protected is what creates legal exposure. The EEOC pursued a $20 million settlement against Verizon over a no-fault policy that did not accommodate protected absences, and more recent matters show it still charging employers under the ADA for pointing FMLA-protected leave. A written exemption is not enough if the system assigns the points anyway.
Build the protection into the process, not just the handbook. State explicitly which absences do not accrue points, hold any possibly protected absence for HR review before points stick, keep timestamped records of every point and adjustment, apply the policy consistently, and treat disability-related patterns through the ADA's interactive process rather than an automatic threshold. Have counsel review the policy and its application.