HR MATTERS E-TIPS
THIS WEEK'S E-TIP: Absenteeism and the FMLA and ADA
Published by Personnel Policy Service, Inc.
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THIS WEEK'S E-TIP: Absenteeism and the FMLA and ADA

Be careful how you deal with attendance problems of employees who
are protected by the FMLA or ADA. You may be restricted in your ability
to discipline for absences covered under these laws.
   
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THIS WEEK'S E-TIP: Absenteeism and the FMLA and ADA

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.

Similarly, in Victorelli v. Shadyside Hospital, 128 F.3d 184 (3rd Cir.
1997), the court determined that an employer may not discipline or
terminate an employee for absenteeism that is the result of taking FMLA-
protected leave.

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 further absences. However, you still need to go further to
determine whether the absences are protected by the ADA.

* ADA Restrictions *

The ADA can also 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 reasonably 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.

So, for example, in Wood v. Green, 323 F.3d 1309 (11th Cir. 2003), the
court ruled that an employee suffering from cluster headaches who
requested indefinite leave so he could work at some uncertain point in
the future was not a qualified individual under the ADA. It found that he
could not perform the essential functions of the job presently or in the
immediate future.

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:

1. 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."

2. 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.

3. 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.

4. 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,
see Attendance and Punctuality, Chapter 701, note 13.
 
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go to: http://www.hrpolicyanswers.com/xstore/catalog/policieslist.html.

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