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THIS WEEK'S E-TIP: Absenteeism: How the FMLA and ADA Interact
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THIS WEEK'S E-TIP: Absenteeism: How the FMLA and ADA Interact
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THIS WEEK'S E-TIP: Absenteeism: How the FMLA and
ADA Interact
Clearly, regular
attendance is essential for most
jobs, and you generally
have the right to discipline, and even terminate,
employees who do not
meet your requirements. However, before you take
action, you should
consider whether an employee's absenteeism is
related to medical
conditions covered by either the Family and Medical
Leave Act (FMLA)
or the Americans with Disabilities Act (ADA).
Both of these laws limit your right to
discipline or
discharge employees
for attendance problems related to certain medical
conditions. Find out
what the laws, regulations, and courts have to say
about this sticky
subject.
FMLA Requirements
The FMLA requires covered employers to provide
eligible employees
with up to 12 weeks of unpaid, job-protected leave
in any 12-month
period for certain family and medical reasons. In
addition, you may not
discriminate against employees who take FMLA leave.
Therefore, you
may not discharge or discipline employees for
absences excused under
its provisions, or take an employee's FMLA leave
into account under "no
fault" attendance policies.
So, for example, in Thorson v. Gemini, Inc., 205
F.3d 370 (8th Cir.), cert.
denied, 531 U.S. 871 (2000), the court found that
the employer violated
the FMLA when it terminated an employee for
excessive absenteeism,
defined as missing more that 5% of scheduled work
hours, because the
absences were covered under the FMLA.
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Once employees have used up their 12-week FMLA
allotment, they are
no longer protected by the FMLA, and you may take
disciplinary action
as a result of additional absences. However, you
still need to go further
to determine whether the absences are protected by
the ADA.
ADA Restrictions
The ADA also can affect your ability to discipline
or discharge employees
for excessive absenteeism that is related to a
disability. The law requires
covered employers to provide reasonable
accommodations to qualified
individuals with disabilities, unless doing so would
impose an undue
hardship on the business. Reasonable accommodations,
depending on
the circumstances, may include part-time or modified
work schedules
and unpaid leave.
Thus for example, the Equal Employment Opportunity
Commission's
(EEOC) Technical Assistance Manual indicates that,
if an employee
regularly needs a few hours off to obtain medical
treatment for a
disability, you should accommodate this need, unless
doing so would
impose an undue hardship. The ADA, in effect,
requires that these be
considered "excused" absences or, in the case of
no-fault attendance
policies, that they not be counted for purposes of
determining if discipline
is appropriate. In addition, you may have to
accommodate disabled
employees by allowing them to take more unpaid leave
than is provided
by your leave policy, unless this would impose an
undue hardship.
If, however, a disabled employee is unable, even
with reasonable
accommodation, to achieve regular and predictable
attendance, the
employee may not be considered a qualified
individual with a disability.
Thus, his absences would not be protected by the
ADA. |
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So, for example, in Brenneman v. Medcentral Health Sys., 366 F.3d 412
(6th Cir. 2004), cert. denied, 543 U.S. 1146 (2005), the court found
that a
diabetic employee who had been absent more than 200 times in five
years from his hospital pharmacist position was not otherwise qualified
for his position with or without reasonable accommodation. He was
unable to satisfy his employer's basic attendance requirements.
And, in EEOC v. Yellow Freight Sys., 253 F.3d 943 (7th Cir. 2001), the
court determined that "in most instances, the ADA does not protect
persons who have erratic, unexplained absences, even when those
absences are a result of a disability," and that "attendance at the job
site
is a basic requirement of most jobs."
Some courts have found that regular and predictable attendance is not
necessarily an essential function of all jobs. Thus, the court in Ward
v.
Massachusetts Health Research Inst. Inc., 209 F.3d 29 (1st Cir. 2000),
found little evidence in this case that a regular and predictable
schedule
was an essential function of a data-entry employee. It therefore ordered
the employer to prove that the requested accommodation, an open-
ended schedule, would create an undue hardship.
In contrast, in Earl v. Mervyns, Inc., 207 F.3d 1361 (11th Cir. 2000),
the
court concluded that punctuality was an essential function of a retail
store area coordinator's job. It noted that the job required certain
tasks
to be performed daily at a specific time, that the employer placed heavy
emphasis on punctuality as a business necessity, and that the employer
had a progressive disciplinary system for violation.
Actions to Prevent Liability
So, how do you make sure you are treating employee absences properly
under the FMLA and ADA? Your best bet is to add the following extra
steps to your decision-making process before you implement any
disciplinary action:
- Determine whether the employee has a medical condition that is
protected under the FMLA or ADA. The FMLA covers employees with
"serious health conditions," while the ADA only protects employees who
have "disabilities."
- If the employee is protected by either law, find out whether the
absences are the result of the covered medical condition. Note that even
if the employee is protected, if the absences are not caused by or
related
to the medical condition, you may take disciplinary action.
- Impose disciplinary action only if the absences are not covered by
the
FMLA or ADA. In addition, if you do take disciplinary action, make sure
you are acting consistently under your policies.
- Check local laws. Many states have disability discrimination and
family and medical leave laws that also limit discipline for absences.
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Subscribers to the
Personnel Policy Manual and HR Policy Answers on
CD can find more information on absenteeism and the FMLA and ADA in
Attendance and Punctuality, Chapter 701, note 13.
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chapters,
go to: http://www.hrpolicyanswers.com.
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