Attendance Control Issues Under the ADA And FMLA

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30th Sep 2015

Employment Lawyers

A. Attendance Control Issues Under the ADA:

(Q) Can a chronically absent or tardy employee perform the essential functions of his/her job?

(A) If so, an employer may have to modify its attendance policies as a reasonable accommodation, unless the employer can show “undue hardship”.

1. ADA protects “qualified individuals with a disability” from employment discrimination on the basis of that disability.

“Disabled” means:

  1. physical or mental impairment;
  2. that substantially limits one or more major life activity;
  3. or a record of such an impairment;
  4. or regarded as having such an impairment (perceived)

“Qualified individual with a disability means:

  1. able to perform the essential functions of one’s job,
  2. with or without reasonable accommodation.

2. Examples:

a. Tyndall v. National Education Inc., 31 F.3d 209 (4th Cir. 1994): a college teacher with an immune system disorder sought protection under the ADA after her employment was terminated for missing almost 40 days of work over a 7 month period. The Court held that reasonably regular attendance was a necessary function of her job, and her frequent absences rendered her unable to function effectively as a teacher.

b. Gore v. GTE South, Inc., 917 F. Supp. 1564 (M.D. Ala. 1996): regular and reliable attendance was an essential function of telephone operator’s job.

c. But, Dutton v. Johnson County Board of County Commissioners,859 F. Supp. 498 (D. Kan. 1994): plaintiff was a public works employee who suffered from migraine headaches that caused him to miss work sporadically. Where his total leave did not exceed his employer-allotted leave time, court ruled his absences were not excessive, nor unduly disruptive.

3. How to Assess Whether Attendance is an Essential Function of a Job:

a. Whether disabled employee is a qualified individual under the ADA is very fact specific.

b. Courts look at number of employee absences as compared to available leave time. If absences do not exceed allotted leave time, employee will not likely be disqualified from “qualified individual” status on that basis.

c. Courts will examine the specific characteristics of the employee’s job to determine if regular and predictable attendance is an essential feature. Has the employee’s absences prevented necessary work from being completed, or otherwise disrupted the workplace? Is job amenable to off-site work or flexible scheduling?

d. Examples: Dutton, supra at 507 (employer failed to show unreasonableness of proposed accommodation under which employee could use accrued vacation time for unscheduled absences caused by illness after exhausting available sick time); Heise v. Genuine Parts Co., 900 F. Supp. 1137, 1153 (D. Minn. 1995) (denying summary judgment for employer where employee requested permission to use flex time to make up portions of days missed due to illness, to use vacation time to cover other absences, and to redistribute certain marginal job functions to other personnel).

e. If employee absences have impaired employer’s ability to complete important work in a timely and competent manner; if work must be performed at a prescribed time and place; if the employer has a written policy stressing the importance of regular and predictable attendance; courts more likely to find that good attendance is an essential element of the job for ADA purposes.

B. Attendance Control Issues Under the FMLA

The FMLA requires employers to provide up to 12 weeks of unpaid leave during a 12-month period to any eligible employee who needs time off for: (1) a serious health condition of the employee that prevents him/her from performing the essential functions of his/her job; (2) to care for the employee’s spouse, child or parent whether that family member has a serious health condition; (3) the birth of a child of the employee in order to care for the child; (4) the placement of an adopted or foster child with the employee.

An employee may not terminate an employee for excessive absenteeism during the pendency of his/her FMLA leave.

1. Restrictions that apply to an employee’s ability to take FMLA leave:

a. Employee must provide employer with reasonable notice of intent to take leave. For foreseeable leave, at least 30 days, or as much as practicable. For unforeseeable leave, as much as practicable.

b. Employee may elect, or employer may require (with notice) to substitute accrued paid vacation leave, personal leave, or sick leave, for any part of the 12-week period;

c. Employer may require certification from the employee’s health care provider, or the employee’s ill family member’s health care provider. Certification should state date on which serious health condition commenced, probably duration of condition, and the appropriate medical facts known by the provider regarding the condition. If certification relates to family member, it should state that employee is needed to care for the family member and an estimate of the length of time the employee’s care will be needed. If certification relates to employee’s health condition, it should state that the employee is unable to perform the functions of his/her job. Employer with reason to doubt validity of the certification may require employee to obtain a second opinion (at employer’s expense), from a physician of the employer’s choosing.

d. Employer is entitled to ongoing information about the medical condition at issue. Employer may request re-certification at reasonable intervals, not more than every 30 days. Employer may also request a “fitness-for-duty” report as a condition of restoring an employee to his/her former position (i.e. a certification from the health care provider that the employee is able to resume work).

2. The Problem of Intermittent Leave

a. The 12 week leave allowed by the FMLA may be taken as intermittent leave or reduced schedule leave. Intermittent leave is leave taken in several blocks of timer, interspersed among periods of continuous employment. A reduced schedule leave is a leave schedule that reduces an employee’s usual number of working hours per work week or per work day. Under either alternative, the employee remains entitled to a full 12 weeks of leave in a 12 month period.

b. To minimize the adverse effects on workplace staffing, employers may:

i. Transfer the employee seeking intermittent or reduced leave to an available alternative position that better accommodates recurring periods of leave. The new position must have equivalent pay and benefits, though not necessarily equivalent duties. Transferring the employee can’t be used as a means of discouraging the employee from taking leave. When the intermittent leave ends, the employee must be restored to the same or an equivalent job.

ii. Require the employee to consult with the employer prior to scheduling treatment, in order to create a schedule that best suits their respective needs.

iii. Request certain specific information about the nature of the employee’s intermittent or reduced schedule leave in the form of a certification from the health care provider.

C. Intersection of the ADA and FMLA

1. The scope of the ADA and FMLA differ in at least 3 key respects:

a. The ADA applies only to employers with 15 or more employees, and extends to all job applicants and employees of covered employers. The FMLA covers only employers with 50 or more employees and protects employees who: (i) work at any site where the employer employs 50 people with 75 miles; (ii) have been employed by the employer for at least 12 months; and (3) have worked at least 1,250 hours in the 12-month period immediately preceding the request for leave.

b. The ADA applies to “qualified” employees and job applicants who suffer from, have a history of, or are regarded as having a disability that constitutes a physical or mental impairment that substantially limits one or more major life activities. The FMLA covers current employees with “serious health conditions”, a term that encompasses a condition that involves inpatient care or continuing treatment (i.e. out 3 days and treated at least twice) by a health care provider.

Thus, there are many circumstances in which an individual’s condition will cause him/her to be protected by one statute but not the other. For example, a complicated pregnancy might be considered a serious health condition under the FMLA, but is not a disability under the ADA. By contrast, a severe hearing loss would probably be a disability under the ADA, but would not be a considered a serious health condition under the FMLA.

Other examples of serious health conditions that may not be disabilities include skin conditions, appendicitis, chicken pox, and mild hernia. Examples of disabilities that might not be serious health conditions are blindness and certain mental impairment.

In general, the FMLA casts a wider net than the ADA.

c. The ADA compels employers to provide qualified individuals with disabilities with “reasonable accommodation” in the absence of “undue hardship”. The FMLA compels employers to do only one specific thing, i.e. grant covered employees unpaid time off from work for a period of up to 12 weeks (and there is no “undue hardship” defense).

2. When Both Statutes Apply

a. When both the ADA and FMLA come into play, complying with requirements under one statute may violate the other. The FMLA addresses this and says: an employer must provide leave under whichever statutory provision provides the greater rights to employees. Thus,

i. The fact that an employee has exhausted his/her 12 weeks of available FMLA leave does not discharge the employer from its obligation to provide additional leave under the ADA as a reasonable accommodation, absent undue hardship.

ii. The FMLA allows an employer to transfer an employee temporarily for intermittent or reduced leave to a job with equivalent pay and benefits, whether the transfer “better accommodates” recurring periods of leave; however, the ADA permits a transfer only where the proposed schedule modification would alleviate an undue hardship that would exist if the employee remained in his/her current job. The FMLA regs say that any transfer must comport with the ADA. But the ADA allows an employer to reassign returning employees to lower grade positions under certain circumstances, while the FMLA mandates that an employee be reinstated to a position with equivalent pay and benefits.

iii. The FMLA requires the employer to provide unpaid leave to an eligible employee, while the ADA permits an employer to deny an employee’s request for leave if there is an alternative reasonable accommodation.

iv. When an employee wishes to return to work following a medical absence, the ADA permits an employer to turn the employee away if allowing his/her return would pose an undue hardship. Under the FMLA, the employee must be allowed to return (unless the job was eliminated, or he/she is a “key employee”)

v. The ADA does not require continuation of benefits during leave. The FMLA compels employers to provide group health benefits during an employee’s leave.

vi. The FMLA permits medical inquiries and certifications of the medical need for leave, but imposes specific limitations on such inquiries. The ADA allows inquiries into the nature and extent of an employee’s disability insofar as such inquiries are job-related and consistent with business necessity.

a. HIPAA privacy requirements require employers to demonstrate they have implemented policies and procedures that limit request for protected health information to only the minimum information necessary. The information must be maintained in separate files from the usual personnel file.

b. Individually identifiable health information that is submitted to an employer purely for employment reasons and not for reasons related to a health plan is not subject to HIPAA.

vii. The FMLA lacks specific confidentiality provisions. However, the ADA mandates strict confidentiality of all medically-related information obtained by the employer.

Open Issue: Can an employer consider the FMLA leave already taken by an employee in assessing whether the granting of additional leave to that employee under the ADA would constitute an undue hardship?

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