No-fault attendance points and legal guardrails
A no-fault attendance point system is a clean way to manage absenteeism. Every unscheduled absence is a point, enough points trigger discipline, and no one argues about excuses. It is also a reliable way to end up in front of the EEOC if it is built wrong. This note covers how these systems work, where they cross FMLA and ADA lines, and the guardrails that keep one defensible.
How this note is governed
Applies to US employers running an attendance point system. The FMLA applies at 50 employees and the ADA at 15, and state and local sick-leave laws sit on top.
Short answer
50 and 15. A no-fault system points absences regardless of reason. It is legal only when protected absences are excluded. The FMLA applies at 50 employees and the ADA at 15. Workers compensation and state sick leave cannot be pointed either.
Published Last verified
The EEOC accommodation guidance and the FMLA and ADA coverage tests were rechecked. The 50 and 15 employee thresholds were unchanged.
- $20M
- the EEOC settlement with Verizon over a no-fault policy that did not accommodate protected absences.
- 50 and 15
- employee thresholds: the FMLA generally applies at 50 or more employees, the ADA at 15 or more.
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. Crossing a threshold triggers escalating discipline, from a warning to termination. The appeal is administrative. There is no investigating whether an absence was justified and no manager discretion to argue about. 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 has a predictable failure. Unless it is built to do otherwise, it treats a legally protected absence the same as an unexcused one. That is the line that turns an efficient policy into a liability.
The direct answer to this note. A point tracker built to separate protected absences from countable ones, with the timestamped record that makes a discipline decision defensible.
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. Its 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. Regulators drew a lesson they have kept applying since. 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. The handbook 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. Its argument was 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. 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 and keeping clean records. Anything that looks protected gets routed to a human who knows the rules. Done that way, a point system reduces absenteeism without becoming the evidence in a lawsuit.
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Where these figures come from
4 citations checked, newest check 24 June 2026
- 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. It also carries the Verizon settlement requiring revised policies and ADA training. eeoc.gov eeoc.gov
- 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. It carries the EEOC’s theory that doing so denied a reasonable accommodation under the ADA. eeoc.gov eeoc.gov
- 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.gov dol.gov
- ADA, employer coverage. The source for the Americans with Disabilities Act generally applying to employers with 15 or more employees. It also covers the requirement to reasonably accommodate qualified individuals with disabilities. ada.gov ada.gov
Common questions
Are no-fault attendance point systems legal?
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. Discrimination and wrongful-termination claims follow even though the policy looks neutral. The carve-out for protected leave is what makes the difference. Confirm the specifics with employment counsel.
What absences cannot be counted against an employee?
Generally, absences protected by the FMLA, meaning serious health conditions, family care, childbirth or adoption. The ADA covers disability-related absences as a reasonable accommodation. Workers’ compensation and state and local leave laws also apply, including 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.
Can you be fired under a point system for a protected absence?
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. 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.
How do you make an attendance point system compliant?
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, and apply the policy consistently. Treat disability-related patterns through the ADA’s interactive process rather than an automatic threshold. Have counsel review the policy and its application.
Put it to work
The direct answer to this note. A point tracker built to separate protected absences from countable ones, with the timestamped record that makes a discipline decision defensible.
$29Built for the trades, where a no-show leaves a crew short on the day. Attendance has to be tracked from the field, not a back office.
$69The plant version, where shift coverage depends on attendance. A points system runs across a large hourly workforce that the carve-out has to scale to.
$59Shaped for a practice, where one absence can disrupt a full day of patients. Coverage and attendance have to be managed together on a small team.
$59Puts a real number on what unplanned absence costs you. The case for managing attendance, and for investing in doing it right, becomes a figure rather than a complaint.
$29
This note is general information about employment practice rather than legal advice for your situation. Check the review date and the jurisdictions above, follow the source link, and confirm the rule before you act on it.