Attendance points and protected leave
Attendance points help managers track unscheduled absences, late arrivals, and early departures consistently. Managers also need to identify protected absences before assigning points. The FMLA generally covers employers with 50 or more employees, while the ADA generally covers employers with 15 or more. State and local laws may provide additional protections. The Verizon and Eberspaecher cases show why that distinction matters.
About this note
Published Reviewed
For US employers using attendance point systems. The FMLA generally covers employers with 50 or more employees, and the ADA generally covers employers with 15 or more. State and local sick-leave laws may provide additional protections.
At a glance
A consistent attendance point system starts with clear rules, a review of protected leave, and documented decisions. The FMLA generally covers employers with 50 or more employees, and the ADA generally begins at 15.
- $20 million
- Verizon’s 2011 EEOC settlement involving disability-related absences under its attendance policy.
- FMLA: 50 employees. ADA: 15 employees.
- General federal employer coverage thresholds.
How an attendance point system works
A no-fault attendance policy assigns points for events such as unscheduled absences, late arrivals, and early departures. Points accumulate over a set period. Reaching specific thresholds leads to warnings or other disciplinary action. For example, a company might assign two points for an unscheduled absence, with termination at ten points within a rolling twelve-month period. Employees know how points are assigned, and managers have a consistent standard to follow.
Before assigning points, review whether the absence is protected under the FMLA, ADA, workers' compensation protections, or applicable state and local laws.
Attendance Point System Tracker | $29
Keep attendance records, protected absence flags, point totals, and disciplinary decisions together in one file.
Which absences may be protected
Before assigning points, check which of these leave protections apply:
- FMLA
- Eligible leave for serious health conditions, family care, birth or adoption, and qualifying military family reasons.
- ADA
- Leave provided as a reasonable accommodation for a disability.
- Workers’ compensation
- Work-related injury absences may receive protection under state workers’ compensation laws. The FMLA or ADA may also apply.
- State and local leave laws
- Depending on the location, protections may include paid sick leave, jury duty, voting leave, military leave, and other qualifying absences. Apply the leave requirements where each employee works.
What two EEOC cases show
In 2011, Verizon reached a $20 million settlement with the EEOC over a no-fault attendance policy that counted disability-related absences toward discipline. At the time, it was the largest disability discrimination settlement in a single EEOC lawsuit. The settlement required attendance policy changes and ADA training for supervisors. The Verizon case shows why employers should review disability-related absences for possible accommodations before assigning points.
In EEOC v. Eberspaecher North America, a case before the Eleventh Circuit in 2023, an employee alleged that his employer assigned points for FMLA-protected absences even though its handbook excused that leave. Because the EEOC does not enforce the FMLA, it pursued the matter under the ADA through a commissioner's charge, arguing that the employer had denied a reasonable accommodation. The court limited the EEOC's subpoena inquiry to one facility.
Build protected-leave review into the process
Have HR review potentially protected absences before points are assigned. These five steps help managers make consistent decisions and keep a clear record:
- Identify the protected absences that apply to your workforce.
- Have HR review potentially protected absences before assigning points.
- Record the date of each attendance occurrence, point adjustment, and disciplinary decision.
- When disability-related absences may be involved, use the ADA interactive process to discuss reasonable accommodations.
- Have employment counsel review the policy and its application.
Research and sources
Four sources reviewed. Last checked 24 June 2026.
- EEOC, ADA guidance on leave as a reasonable accommodation. Explains when employers may need to modify attendance and leave policies for employees with disabilities. Also discusses the Verizon settlement. eeoc.gov. .
- EEOC v. Eberspaecher North America, Eleventh Circuit, 2023. Addresses an EEOC investigation involving alleged attendance points for FMLA-protected absences and the agency’s ADA theory. eeoc.gov. .
- U.S. Department of Labor, FMLA. Explains employer coverage, employee eligibility, and qualifying leave. dol.gov. .
- ADA, employer coverage. Explains the general 15-employee threshold and reasonable accommodation requirements. ada.gov. .
Common questions
Are no-fault attendance point systems legal?
Yes. Employers can use attendance point systems when they account for legally protected absences. Review qualifying FMLA leave, ADA accommodations, and other protected leave separately from disciplinary points.
Which absences should be excluded from points?
Qualifying FMLA leave, disability-related leave provided as an ADA accommodation, and absences protected by applicable workers’ compensation and state or local leave laws. The specific protections depend on the employer, employee, and location.
Why does protected leave need a separate review?
A separate protected-leave review helps managers determine which absences count toward attendance points. Verizon reached a $20 million EEOC settlement in 2011 involving disability-related absences under its attendance policy. In a 2023 matter, the EEOC pursued an ADA charge against an employer accused of assigning attendance points for FMLA-protected leave. Document which absences were protected and the reason for each attendance decision.
What should managers do before assigning attendance points?
Before assigning points, check whether the absence may qualify for protected leave. Have HR review potentially protected absences and document attendance occurrences, point adjustments, and disciplinary decisions with dates. Use the ADA interactive process to discuss reasonable accommodations when disability-related absences may be involved. Have employment counsel review the policy and its application.
Tools for the next step
Record attendance, flag protected absences, and track points and disciplinary decisions in one file.
$29Track attendance and shift coverage across manufacturing teams, with protected leave handled separately.
$59Track attendance and coordinate staffing for patient appointments.
$59Estimate the cost of unplanned absences by department using your own figures.
$29
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