No matter what position the EEOC might take, I’ll always take the position that an employee’s regular, reliable attendance is an essential function of the job. So, when an employee wants to arrive at work at any time, without any repercussions, it’s not a reasonable accommodation under the ADA. And I have a recent court case to prove it.
First, let me set the stage: as you’ll recall from my post last week, the EEOC will be allowed to advance an ADA lawsuit against UPS, in which the agency claims that UPS’ 12-month automatic termination policy does not provide an outlet for UPS to engage its employees in the ADA’s interactive process to determine whether a reasonable accommodation can help them return to work.
I used the case to urge employers to engage in the interactive process to do good by its employees and better defend itself against ADA claims.
Mecca v. Florida Health Services Center (pdf) is an example of how good things happen to employers when they actually engage in the ADA’s interactive process.
The Facts and Court Ruling
Dan was a PICC nurse who inserted intravenous catheters into a patient’s arm. During his employment, Dan also suffered panic attacks and anxiety, and regularly sought FMLA leave for these medical conditions. On one occasion in 2010, he took several weeks off due to stress/anxiety. Upon his return, his doctor limited him to working three days per week, which required the Hospital to alter his schedule. As Dan would later acknowledge, he generally wanted to come and go as he needed whenever his anxiety or panic attacks flared up.
To be clear, the Hospital worked with Dan on his schedule — it provided FMLA leave where his absences were covered by the Act, and on several occasions, it changed his schedule to accommodate his restrictions. But it also was clear that his condition was not improving and that his irregular attendance would likely be the norm.
Shortly after his return to work, he resigned after he failed to respond to several calls to insert PICC lines for various patients. Inexplicably, he turned around and sued the hospital, claiming (among other things) that it did not accommodate his leave requests.
In dismissing Dan’s ADA and FMLA claims, the court quickly pointed out that a nurse’s regular attendance at work is an essential function of the job. Notably, the Court neatly wrapped up the issue this way:
An employer does not have to wait indefinitely for an employee’s medical condition to be corrected, especially when it is uncertain whether the condition will improve . . . despite [Mecca’s] having taken leave on numerous occasions, the leave had not improved Mecca’s ability to have regular attendance, nor was there any indication that it would do so at any point in the near future. Therefore, leave was not a reasonable accommodation.
Key in on my italics above. Let’s not forget — the interactive process also requires that the employee (and his/her doctor, as applicable) communicate how long the accommodation is necessary and whether we can count on regular, reliable attendance in the near future.
Insights for Employers
In light of the court’s decision, a couple of thoughts come to mind:
- First off, don’t interfere with FMLA rights: if the employee suffers from a serious health condition that renders him unable to work, he has a right to FMLA leave. ADA and FMLA issues often get intertwined, so let’s not assume we can hit the termination button simply because the employee can’t do the job and there is no accommodation available. FMLA compliance is mission critical.
- Follow the Hospital’s lead and engage in the interactive process early and often. The simple question, “How can we help you?” can go a long way. Here, the employer’s decision to grant Dan’s multiple leave requests and its flexibility in scheduling him was persuasive to the Court in ultimately rejecting Dan’s ADA claims.
- Where you are faced with an employee whose attendance is unreliable as a result of an apparent medical condition, you have the right to know from his/her physician whether the requested accommodation (here, it was leave) will help the employee perform their job duties in the present or immediate future. Courts are using this terminology now with some regularity, so let’s be sure to use it in our communications with the employee’s physician. Work with your employment counsel to develop model correspondence with an employee and his physician in these situations.
- Don’t forget about progressive discipline where it is unrelated to the leave request. Here, Dan returned from leave and immediately ignored several requests for PICC lines. He failed to do his job. So long as you have disciplined others for the same shortfalls, disciplining Dan on this occasion is perfectly defensible.