Workplace attendance point systems are legal in most of the United States, and employers have wide latitude to design them. They stop being legal the moment they assess points against absences that federal or state law protects, including leave under the FMLA, disability-related absences requiring accommodation under the ADA, pregnancy-related time off, religious observances, and military service.
How a Point System Actually Works
Under a typical point system, you pick up a set number of points each time you miss work, arrive late, or leave early. A late arrival might be half a point; a full unexcused absence might be one or two. Points accumulate over a rolling window, and once you hit a threshold, discipline escalates: verbal warning, written warning, suspension, termination. Points usually expire after six months to a year.
Most of these systems are “no-fault.” The employer doesn’t distinguish between a flat tire and a medical appointment. Every unexcused absence is treated the same. That bluntness is the appeal for employers, and it’s also where the legal problems start, because federal law does distinguish between reasons for an absence.
Why Point Systems Are Legal by Default
American employment law starts from at-will employment. An employer can set the terms of the job, including attendance rules, and can terminate you for any reason not specifically prohibited by law.1Bureau of Labor Statistics. Employment at Will There’s no federal statute banning point-based attendance tracking. A policy that applies the same rules to everyone, uses clear thresholds, and carves out legally protected absences is lawful.
The trouble comes when employers treat “no-fault” as truly meaning “no exceptions.” Several federal laws require exceptions, and ignoring them turns a legal policy into an illegal one.
When a Point System Becomes Illegal
FMLA Leave
The Family and Medical Leave Act entitles eligible employees to up to 12 weeks of unpaid, job-protected leave per year for a serious health condition, the birth or placement of a child, caring for a family member with a serious health condition, and certain military-related situations.2Office of the Law Revision Counsel. 29 U.S. Code 2612 – Leave Requirement Interfering with or retaliating against an employee for exercising these rights is unlawful.3Office of the Law Revision Counsel. 29 U.S. Code 2615 – Prohibited Acts
Federal regulations address point systems directly. Under 29 C.F.R. ยง 825.220, employers cannot use FMLA leave as a negative factor in employment actions, “nor can FMLA leave be counted under no fault attendance policies.”4eCFR. 29 CFR 825.220 – Protection for Employees Who Request Leave or Otherwise Assert FMLA Rights The Department of Labor has said the same in an opinion letter: no-fault attendance policies “do not necessarily violate the FMLA as long as points are not assessed for employees who are absent due to any FMLA qualifying reason.”5U.S. Department of Labor. WHD Opinion Letter FMLA2018-1-A The DOL lists “counting FMLA leave under ‘no fault’ attendance policies” as an example of prohibited employer conduct.6U.S. Department of Labor. Fact Sheet 77B – Protection for Individuals under the FMLA
Not every employee qualifies. You need at least 12 months with the employer, at least 1,250 hours worked in the previous 12-month period, and a worksite where the employer has 50 or more employees within 75 miles.7Office of the Law Revision Counsel. 29 U.S. Code 2611 – Definitions Miss any of those, and your absences are not FMLA-protected. Part-time employees and newer hires often assume any medical absence is covered when it isn’t.
Disability-Related Absences
The Americans with Disabilities Act prohibits covered employers (15 or more employees8ADA.gov. Guide to Disability Rights Laws) from discriminating against qualified individuals with disabilities. The ADA defines discrimination to include using “standards, criteria, or methods of administration” that have the effect of discriminating on the basis of disability, and failing to make reasonable accommodations.9Office of the Law Revision Counsel. 42 U.S. Code 12112 – Discrimination A point policy that looks neutral on paper can violate both provisions if it penalizes absences tied to a disability the employer should be accommodating.
Reasonable accommodation can include modifying attendance policies, granting additional leave, or adjusting schedules. The EEOC’s guidance lists modified workplace policies and leave among the accommodations employers should consider.10U.S. Equal Employment Opportunity Commission. Enforcement Guidance on Reasonable Accommodation and Undue Hardship under the ADA Automatically assigning points for every absence without an interactive process risks an ADA violation even if the policy is applied uniformly.
The EEOC has backed this with enforcement action. In one of the largest ADA settlements in the agency’s history, the EEOC sued a major telecommunications company for terminating and disciplining hundreds of employees under a rigid attendance policy that failed to make exceptions for disability-related absences. The case settled for $20 million.11U.S. Equal Employment Opportunity Commission. Verizon to Pay $20 Million to Settle Nationwide EEOC Disability Suit
Pregnancy-Related Absences
The Pregnant Workers Fairness Act took full effect in June 2024. Covered employers must provide reasonable accommodations for known limitations related to pregnancy, childbirth, or related medical conditions, unless doing so would cause undue hardship. The law prohibits “adverse action in terms, conditions, or privileges of employment” against an employee who requests or uses such an accommodation.12Office of the Law Revision Counsel. 42 U.S. Code 2000gg-1 – Nondiscrimination with Regard to Reasonable Accommodations Related to Pregnancy
The EEOC has identified leave for prenatal appointments and leave to recover from childbirth as examples of reasonable accommodations under the PWFA. Assigning attendance points for a pregnancy-related absence creates both a failure-to-accommodate claim and a potential retaliation claim. The PWFA also prohibits forcing an employee to take leave when another accommodation could keep them working.13U.S. Equal Employment Opportunity Commission. What You Should Know About the Pregnant Workers Fairness Act
Religious Observances
Title VII of the Civil Rights Act makes it unlawful for an employer to discriminate because of religion, including all aspects of religious observance and practice.14Office of the Law Revision Counsel. 42 U.S. Code 2000e-2 – Unlawful Employment Practices If you need to miss work for a religious holiday, sabbath observance, or similar practice, your employer must attempt a reasonable accommodation unless it would impose an undue hardship on the business.
The Supreme Court’s 2023 decision in Groff v. DeJoy raised the bar for what counts as undue hardship. The Court held that an employer must show the accommodation would impose a substantial burden in the overall context of the business, not merely a trivial cost, and that coworker resentment cannot count as a business burden.15Supreme Court of the United States. Groff v. DeJoy, 600 U.S. 447 (2023) An attendance system that pings a religious absence without any effort at accommodation is on shakier ground than it was a few years ago.
Military Service
The Uniformed Services Employment and Reemployment Rights Act prohibits employers from denying any benefit of employment based on military service. If military service is even a motivating factor in an adverse employment action, the employer has violated the law unless it can prove it would have taken the same action anyway.16Office of the Law Revision Counsel. 38 U.S. Code 4311 – Discrimination Against Persons Who Serve in the Uniformed Services Assigning points for absences caused by military duty is hard to defend, since it penalizes the employee for exercising service obligations.17U.S. Department of Labor. USERRA Pocket Guide
Disparate Impact
Even when a point system doesn’t target any protected group, it can still violate federal law if it disproportionately harms employees based on race, color, religion, sex, or national origin. Title VII recognizes disparate impact claims: a facially neutral practice that causes disproportionate effect on a protected group is unlawful unless the employer can show it’s job-related and consistent with business necessity.14Office of the Law Revision Counsel. 42 U.S. Code 2000e-2 – Unlawful Employment Practices The ADA applies the same logic to disability. A rigid point system with no accommodation process built in is the textbook example of a facially neutral policy that produces discriminatory results.
State Sick Leave and Workers’ Compensation
Federal law isn’t the whole picture. A growing number of states and cities have mandatory paid sick leave laws with anti-retaliation provisions. Assigning attendance points for lawfully used sick leave can constitute retaliation under those statutes, even when the employer applies the same rule to everyone. Specifics vary: some states explicitly prohibit counting protected sick leave under a point system, others frame the protection more broadly.
Workers’ compensation is similar. Every state has laws protecting employees who file workers’ comp claims for on-the-job injuries, and most include anti-retaliation provisions. Points assigned for absences caused by a workplace injury, particularly one with an active claim, can look like retaliation regardless of uniform application.
Union Workplaces
If your workplace is covered by a collective bargaining agreement, the employer generally cannot unilaterally impose or change an attendance point system without bargaining with the union first. Attendance policies are a mandatory subject of bargaining under the National Labor Relations Act. The NLRB takes a narrow view of management-rights clauses, so boilerplate contract language usually doesn’t authorize unilateral changes unless the union clearly and unmistakably waived its right to bargain over the issue. If you believe an employer implemented or changed a point system without proper bargaining, start with your union representative, who can file a grievance or an unfair labor practice charge.
What To Do If You Get Points You Shouldn’t Have
First, check whether your absence falls into a protected category: FMLA-qualifying leave, disability or pregnancy-related time off, a religious observance, or military duty. Make sure your employer knows the reason and that the absence has been designated correctly in whatever tracking system the company uses. Verbal notice is easy to dispute later, so follow up anything you say in person with an email.
Keep your own records. Save leave requests, approval emails, medical certifications, and any correspondence with HR. If wrong points appear on your record, raise the issue in writing with your manager or HR first. Many employers have internal correction procedures, and fixing it there is faster than the alternative.
If internal channels don’t work, you can file a charge with the EEOC for violations involving the ADA, Title VII, or the PWFA. You generally have 180 calendar days from the date of the discriminatory action, extended to 300 days if a state or local agency enforces a similar anti-discrimination law.18U.S. Equal Employment Opportunity Commission. Time Limits For Filing A Charge For FMLA violations, you can file a complaint with the Department of Labor’s Wage and Hour Division or bring a private lawsuit. USERRA complaints go to the Department of Labor’s Veterans’ Employment and Training Service. Missing these deadlines can forfeit your claim entirely, so don’t wait indefinitely for the employer to self-correct.