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.
Frustrated Beyond Belief
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.
Pamela Fyfe is an HR attorney whose job at the Nonprofits Insurance Alliance Group includes counseling nonprofits on employment matters: if your nonprofit is insured by a NIAG company (either the Alliance for Nonprofit Insurance or the Nonprofits’ Insurance Alliance of California) her good advice is available to you at no charge. Pamela contributes to this Ask Rita in HR column as part of NIAG’s sponsorship of Blue Avocado.