Jacquie Brennan: Hello, this is Jacquie Brennan, your host for the Disability Law Lowdown. today’s podcast is going to be about attendance issues for people with disabilities under the Americans with Disabilities Act.

Employers generally have attendance requirements for employees. Many employers recognize that employees need time off and therefore provide paid leave in the form of vacation or annual leave, personal days, and sick days. Some employers also offer opportunities to use advance or unpaid leave as well as leave donated by coworkers. Certain laws may require employers to extend leave such as the ADA as a reasonable accommodation and the Family and Medical Leave Act.

The Equal Employment Opportunity Commission recently published a paper called “The Americans with Disabilities Act: Applying Performance and Conduct Standards to Employees with Disabilities” and they had a section in it about attendance issues. That’s the source of the material we’re going to discuss today. They did it in a question and answer format so that’s what I’m going to use as well. So here we go.

Q: Must employees with disabilities be granted the same access to an employers existing leave program as all other employees?

A: Yes. Employees with disabilities are entitled to whatever forms of leave the employer generally provides to its employees. This means that when an employee with a disability seeks leave under an employers regular leave policies, she must meet any eligibility requirements for the leave that are imposed on all employees. Like, maybe the employees have to have completed a probation period or they have to have this leave granted in advance. Similarly, employers must provide employees with disabilities with equal access to programs granting them flexible work schedules and modified work schedules.

As an example, an employee requests a nine month leave of absence because of a disability. The employer has a policy of granting unpaid medical leave for one year, but refuses this employees request and terminates her instead. If the employers policy is to grant employees up to one year of medical leave with no other conditions, denying this benefit because the employee has a disability would violate the ADA. If an employee with a disability needs leave or a modified schedule beyond that provided by the employer’s benefit program, then the employer may have to grant the request as a reasonable accommodation as long as there’s no undue hardship.

Q: Does the ADA require employers to modify attendance policies as a reasonable accommodation if there is no undue hardship?

A: Yes. If requested, employers may have to modify attendance policies as a reasonable accommodation as long as there’s no undue hardship. Modifications may include allowing an employee to use accrued paid leave or unpaid leave, adjusting arrival or departure times, like allowing an employee to work from ten to six rather than nine to five, and providing periodic breaks.

Q: Does the ADA require that employers exempt an employee with a disability from time and attendance requirements?

A: Although the ADA may require an employer to modify its time and attendance requirements as a reasonable accommodation, employers need not completely exempt an employee from time and attendance requirements or grant open-ended schedules like the ability to arrive or leave whenever the employee’s disability necessitates, or accept irregular, unreliable attendance.

Employers generally do not have to tolerate repeated instances of tardiness or absenteeism that occur with some frequency over an extended period of time and often without advance notice. The chronic, frequent and unpredictable nature of such absences may put a strain on the employer’s operations for a variety of reasons like the inability to ensure a sufficient number of employees to accomplish the goals of the work that’s required, a failure to meet work goals or serve clients or customers adequately, a need to shift work to other employees preventing them from doing their own work, and incurring significant additional cost when employees work overtime or when temporary workers have to be hired.

Under these or similar circumstances, an employee who is chronically, frequently and unpredictably absent may not be able to perform one or more of the essential functions of the job and the employer may be able to demonstrate that any accommodation would impose an undue hardship thus rendering the employee unqualified.

For example, an employee with asthma who is ineligible for FMLA leave works on an assembly line shift that begins at seven am. Recently his illness has worsened and his doctor has been unable to control the employee’s increasing breathing difficulties. As a result of these difficulties, the employee has taken twelve days of leave in the past two months, usually in one or two day increments. The severe symptoms generally occur at night thus requiring the employee to call in sick early the next morning. The lack of notice puts a strain on the employer because the assembly line can’t function well without all of the line employees present and there is no time to plan for a replacement.

The employer seeks medical documentation from the employee’s doctor about his absences and the doctor’s assessment of whether the employee will continue to have a frequent need for intermittent leave. The doctor responds that various treatments have not controlled the asthmatic symptoms and there is no way to change this particular situation in the foreseeable future.

Given the employee’s job and the consequences of being unable to plan for future absences, the employer determines he cannot keep the employee on this shift. Assuming no position is available for reassignment, the employer does not need to retain the employee.

As practical guidance, the EEOC says that it’s best if an employee requests accommodation once he’s aware he’ll be violating an attendance policy or requiring intermittent leave due to a disability. Otherwise, an employer’s entitled to continue holding the employee accountable for such absences without any obligation to consider if there’s a reasonable accommodation that might address the problem. Moreover, prompt request for an accommodation may enable an employer to better plan for schedule modifications or absences, thus permitting an employee to get the accommodation.

Another example. An employee works as an events coordinator. She’s exhausted her FMLA leave due to a disability and now requests additional intermittent leave as a reasonable accommodation. The employee can never predict when the leave will be needed of exactly how much leave she will need on each occasion, but she always needs between one to three days per time. The employer initially agrees with her request and the employee takes fourteen days of leave over the next two months. Documentation from the employee’s doctor shows that the employee with continue to need similar amounts of intermittent leave for at least the next six months.

Event planning requires staff to meet strict deadlines and the employee’s sudden absences create significant problems. Given the employee’s prognosis of requiring unpredictable, intermittent leave, the employer cannot plan work around these absences. The employer has already had to move coworkers around to cover the employee’s absences and delay different kinds of work. The ongoing, frequent, unpredictable nature of the absences makes additional leave an undue hardship and thus the employer is not required to provide it as a reasonable accommodation. If the employer cannot reassign the employee to a vacant position that can accommodate her need to intermittent leave, it is not required to retain her.

Another example. An employee with multiple sclerosis works as a bookkeeper for a small medical practice and is not covered under FMLA, but is covered under the ADA. He requests intermittent leave as a reasonable accommodation. The employee has already taken five days of sick leave for the disability when he makes the request. He’s taken a two day and then a three day leave of absence. Documentation from the employee’s doctor shows the employee will continue to need intermittent leave for at least several months. The doctor cannot predict when or how much leave will be needed but based on the employee’s treatment and current situation, the doctor believes each leave of absence would be from one to three days.

The employer determines that no undue hardship exists at this time and grants the employee intermittent leave for the disability consistent with the doctor’s letter. The employer explains that it will reassess the accommodation in six months or sooner if the employee’s use of leave begins to have a negative impact on its operations. During the next six months the employee takes twelve days of medical leave. While the employee’s unpredictable absences cause some problems, the employer has managed to adjust the situation without burdening other employees or falling behind in the work load. The employee has made up work where he could and the employee has always notified his supervisor immediately when he realizes he needs to take leave. Because there is no undue hardship at this time, the employer agrees to continue the reasonable accommodation of intermittent leave under the same conditions as before.

Q: Do employers have to grant indefinite leave as a reasonable accommodation to employee’s with disabilities?

A: No. Although employers may have to grant extended medical leave as a reasonable accommodation, they don’t have an obligation to provide leave of an indefinite duration. Granting indefinite leave, like frequent and unpredictable requests for leave can impose an undue hardship on an employer’s operations. Indefinite leave is different from leave requests that give an approximate date of return or give a period for return. If the approximate date of return or the estimated time period before returning turns out to be incorrect, the employer may seek additional documentation in the form of medical documentation to determine whether it can continue providing leave without undue hardship or whether the request has become one for leave of indefinite duration.

As an example, an employer’s policy allows employees one year of medical leave but then requires that either they return, either with or without reasonable accommodation, or be terminated. An employee with a disability who has been on medical leave for almost a year informs her employer that she will need a total or thirteen months of leave for treatment of her disability and then she would be able to return to work. She provides detailed medical documentation in support of her request. This request is not for indefinite leave because the employee provides a specific date on which she can return. The employer must provide the additional month of leave as a reasonable accommodation unless it would cause an undue hardship.

The employer may consider the impact on its operations caused by the initial twelve months absence along with other undue hardship factors. The mere fact that granting the requested accommodation requires the employer to modify its leave policy for this employee does not really constitute undue hardship.

Another example. The employer had the same leave policy that I just described. An employee with a disability who has been on medical leave for a year informs his employer that he’ll never be able to return to his old job due to his disability and he doesn’t really have any information on whether or when he could return to another job that he could perform. The employer may terminate this worker because the ADA does not require the employer to provide indefinite leave.

Another example. The employer grants twelve weeks of medical leave at the request of an employee with a disability. At the end of this period, the employee submits a note from his doctor requesting six additional weeks, which the employer grants. At the conclusion of that six additional weeks, the employee gives the employer a note saying they need another six weeks which would bring the employee’s total leave to twenty-four weeks.

The employer is concerned about the requests for extension and whether they signal a pattern. Although the employer has been able to cope with the extended absence to date, it foresees a more serious impact on its operation if the employee requests more than a few additional weeks of leave. The employer requests information from the employee’s doctor about the two extensions, including information on why the doctor’s earlier prediction turned out to be wrong, a clear description of the employee’s current condition, and the basis for the doctor’s conclusion that only another six weeks are required.

The doctor explains that there have been complications and that the employee is not responding to treatment as expected. The doctor states that the current request for an addition six weeks may not be sufficient and more leave, maybe up to several months, may be needed. The doctor states that the employee’s current condition does not permit a clear answer as to when the employee will be able to return to work. This information supports a conclusion that the employee’s request has really become one for indefinite leave. This poses an undue hardship and therefore the employer may deny the request.

And the last question:

Q: Does an employer have to grant a reasonable accommodation to an employee with a disability who waited until after attendance problems developed to request it?

A: An employer may impose disciplinary action consistent with its policies as applied to all other employees for attendance that occurred prior to a request for reasonable accommodation. However, if the employee’s infraction does not merit termination, but some lesser disciplinary action like say a warning, and the employee then requests accommodation, the employer must consider the request and determine if it can provide a reasonable accommodation without causing undue hardship.

As an example, an employee with diabetes is given a written warning over excessive absenteeism. After receiving the warning, the employee notifies his employer that his absences were related to his diabetes which is not well controlled. The employee asks that the employer withdraw the written warning and provide him with leave when needed due to complications from his diabetes. The employee’s doctor has changed his treatment and states that he believes the employee’s diabetes to be well controlled within the next one to two months. The doctor also states that there may still be a need for leave during the transition period but expects the employee would be out of work no more than three or four days.

The employer does not have withdraw the written warning, but it must grant the requested accommodation unless it would impose an undue hardship.

One last example. A bank manager’s starting time is eight am. Due to the serious side effects of medication she takes for her disability, she really cannot get to work until nine am. The manager’s late arrival results in a verbal warning prompting her to request that she be allowed to arrive at nine because of the side effects of the medication she takes for her disability. The manager’s modified arrival time would not effect customer service or the ability of other employees to do their job and she has no duties that require her to be at the bank before nine am.

The bank denies this request for reasonable accommodation saying that, as a manger, she has to set a good example for other employees about the importance of punctuality. Because the manager’s later arrival time would not effect the manager’s performance or the operation of the back, denial of this request for reasonable accommodation is a violation of the ADA.

Well, I hope this helped and you learned a little something about attendance issues for employees with disabilities under the Americans with Disabilities Act and that you join us for the next Disability Law Lowdown podcast. Thanks for tuning in.

The Disability Law Lowdown is brought to you by the Disability Business Technical Assistance Centers which are a network of ADA Centers that provide training, technical assistance and materials on the ADA and other disability-related laws. Funding for the Centers is provided by a grant from NIDRR, the National Institute on Disability and Rehabilitation Research.

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