Is Coming to Work Required to Keep My Job?
An employee with a disability requests intermittent leave as an accommodation. But coming to work is an essential function of the job.
Article Highlights:
Is an employee who is unable to come to work still qualified to perform the job?
Dear Rita in HR:
I have an employee with a disability who is requesting intermittent leave as an accommodation. She says she can’t tell ahead of time when she’s going to be able to come to work. It seems to me that just coming to work is an “essential function of the job” and she isn’t able to perform that function. Our HR director says we can’t terminate her. Help! I’m hoping you will have a second opinion that will let me terminate this employee and hire someone I know will show up.
Sincerely,
Frustrated Beyond Belief
Dear Frustrated,
I sympathize with your frustration! You are not alone in being confused and aggravated. Basically, the ADA prohibits discrimination against “qualified individuals”: disabled employees who can perform the essential functions of the job with (or without) reasonable accommodation.
The legal question is whether an employee who is unable to come to work can still be qualified to perform the essential functions of her job.
The Ninth Circuit Court of Appeals recently grappled with the ADA absence issue and, under very specific circumstances involving an intensive care nurse, determined that the employee in that case was not a qualified individual. This is in contrast to some former Federal Court decisions and recent EEOC settlements. Examples:
- A $3.2 million EEOC settlement in January, 2011, involving Supervalu stores, which had a policy of automatically terminating employees who were unable to return to work after a one-year disability leave. The EEOC’s position is that a predetermined fixed period of leave time violates the ADA as each case must be assessed on a case-by-case basis.
- In September 2011 the EEOC announced a similar settlement for $20 million with Verizon Communications where Verizon had a “no fault” attendance policy under which employees were disciplined for exceeding limits on “chargeable absences.” But the policy had no exceptions for absences caused by ADA-covered disabilities.
- In June 2011 the EEOC held a public hearing on the leave-as-accommodation issue. The EEOC emphasized that employers should not maintain inflexible leave of absence policies that provide for automatic termination after a specified period of time. This issue often arises when employees exhaust the twelve weeks of leave provided under the Family and Medical Leave Act (FMLA). In such cases, employers must determine whether it would be reasonable to provide additional time off under the ADA.
When you can terminate a disabled employee who can’t come to work
I cannot emphasize enough that all ADA cases are fact-based, so let’s start with the facts of the intensive care neo-natal nurse case mentioned above. This case involved a neo-natal intensive care nurse with fibromyalgia who, because of her disability, could not always show up for work. Nor could she plan ahead for when she would be unable to do her job. It should be noted that the special training required made it difficult to find a last minute replacement.
The hospital’s attendance policy was to allow all neo-natal nurses to take five unscheduled absences a year. During her 11-year employment, the hospital engaged in the required ADA interactive process with this nurse and granted three accommodations:
- a part-time job
- no scheduling shifts on consecutive days and
- the ability to call in and move her shift to another day.
Even so, the employee “called-off” more than the allowed five times per year. Finally the employee requested that she be excused from the attendance policy altogether, effectively requesting that there be no limit on how often she could call in sick or with how much notice. Litigation ensued after the hospital refused to grant the employee’s request.
Employee burdens of proof compared to employer burdens of proof
The Ninth Circuit had previously decided that in order to establish a failure-to-accommodate claim under the ADA, the employee must show that:
- The employee has a disability
- The employee is a qualified individual able to perform the essential functions of the job with reasonable accommodation; and
- The employee suffered an adverse employment action due to refusal to make accommodation for the disability.
On the employer side, the employer has the burden of showing what functions of the job are considered “essential functions.” Although the Ninth Circuit has previously found that attendance is not always an essential function of the job when an employee requests leave under the ADA, the Ninth Circuit held in this case that the employer had met its burden of showing that attendance was an essential function of the job. The court found that attendance can be considered an essential job function when three elements are present:
- The employee works as part of a team;
- The job requires face-to-face interaction with clients or other employees;
- The job requires that the employee work with on-site equipment.
In the case of the neo-natal nurse, she worked as part of a specially trained team, her job required that she be present to care for neo-natal babies and her work required the use of on-site medical equipment. Because she met these three criteria, the Court determined that she was not a “qualified individual” under the ADA as she could not perform the essential function of attending work. The Court dismissed her lawsuit.
Practically speaking for you
What does this mean for your nonprofit? If you believe, that attendance is an essential function for a particular job based on the three elements identified above, you should include that fact in the job description and in your personnel handbook attendance policy. It is important to remember that you should not count FMLA leave as an unscheduled absence when looking at excessive absences. The neo-natal nurse in the case we have been discussing had exhausted her FMLA leave which had not been counted towards her unscheduled absences. And note further that the hospital demonstrated an extraordinary amount of patience and flexibility in accommodating the employee’s requests.
The obligation to provide leave as an accommodation under the ADA is one of the most complex issues an employer can face. The bottom line: don’t rush to terminate an employee with a disability without first granting reasonable leave requests or offering some other type of accommodation. Both patience and flexibility are key ingredients to avoiding an adverse court decision. And as your HR director well knows, it’s best to consult with an HR attorney to work through a termination as complex as this one.
You might also like:
- Five Internal Controls for the Very Small Nonprofit
- Drive Your Nonprofit’s Mission by Investing in Your People
- Supporting Caregiver Employees in the Nonprofit Sector
- Increase Safety for Your Nonprofit’s Team
- Ask Rita in HR: Should Murphy’s Law Be a Consideration in Making HR Decisions?
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About the Author
Pamela Fyfe is an Employment Risk Manager for the Nonprofits Insurance Alliance. In her position she helps nonprofits avoid potential employment claims and reduce the possibility of future claims. Before joining the Nonprofits Insurance Alliance Group, she practiced employment law for more than 25 years — representing management in wrongful termination, discrimination and sexual harassment cases. She admits to possibly having sneaked online at work to see her first grandchild — Mara Adeline — who lives in London.
Articles on Blue Avocado do not provide legal representation or legal advice and should not be used as a substitute for advice or legal counsel. Blue Avocado provides space for the nonprofit sector to express new ideas. The opinions and views expressed in this article are solely those of the authors. They do not purport to reflect or imply the opinions or views of Blue Avocado, its publisher, or affiliated organizations. Blue Avocado, its publisher, and affiliated organizations are not liable for website visitors’ use of the content on Blue Avocado nor for visitors’ decisions about using the Blue Avocado website.
Hi Pamela, This article is very helpful with relevant information. I had had experienced of discriminated due to my disability. I had been gone from work for a year due to my medical problem. When I came back one of the board member stated that " you should be at home because of your sickness, and if you die at work who is going to respondible for that?" After I heard that statement, it hurt me so bad and I remember that feeling as of today. I cry each time when it recalled. I could have sued the board but I let God does the work. SK
Very comprshensive article on these legalities, thank you!
Hi Pamela, This article is very helpful with relevant information. I had had experienced of discriminated due to my disability. I had been gone from work for a year due to my medical problem. When I came back one of the board member stated that " you should be at home because of your sickness, and if you die at work who is going to respondible for that?" After I heard that statement, it hurt me so bad and I remember that feeling as of today. I cry each time when it recalled. I could have sued the board but I let God does the work. SK
Very comprshensive article on these legalities, thank you!
“If you believe, that attendance is an essential function for a particular job based on the three elements identified above, you should include that fact in the job description and in your personnel handbook attendance policy.” — Do you have appropriate language you can share?
I am aware of the fact the alcohol test has nothing to do with alcoholism but for the safety of the worker(s). I've had experience in a variety of factories; just walking or standing in a manufacturing plant can be very dangerous and life threatening. I agree, no employee should be on the job site with alcohol in his/her blood because alcohol destroys the brain cells in the central part of the brain which controls a person's physcial balance and mental judgement.I still don't see what ADA has to do with alcohol testing requested by employers. The Alcohol and Drug Protection Agency should be the one to get involved in this alcohol test issue.
I am aware of the fact the alcohol test has nothing to do with alcoholism but for the safety of the worker(s). I've had experience in a variety of factories; just walking or standing in a manufacturing plant can be very dangerous and life threatening. I agree, no employee should be on the job site with alcohol in his/her blood because alcohol destroys the brain cells in the central part of the brain which controls a person's physcial balance and mental judgement.I still don't see what ADA has to do with alcohol testing requested by employers. The Alcohol and Drug Protection Agency should be the one to get involved in this alcohol test issue.