Excessive Absenteeism Unprotected Under FMLA and ADA

By Scott M. Wich October 9, 2018
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​With multiple legally required time-off entitlements in play, the administration of employee leave benefits can prove to be a tough task for even the most experienced HR professional. Sometimes the dizzying array of obligations can make an employer reluctant to terminate a worker based on attendance issues. However, by paying careful attention to both the quantity of and reasons for employee absences, employers can confidently enforce their attendance policies without violating the Family and Medical Leave Act (FMLA) or the Americans with Disabilities Act (ADA).

An employee was absent from work due to multiple medical leaves of absence as well as a number of unauthorized reasons. In early October 2014, the employee was warned that he had been absent without leave for a total of 110 hours. Pursuant to company policy, further unauthorized absences would result in his discharge.

On Oct. 21 and 22, the employee left work early without authorization and was subsequently absent. When he returned to work on Oct. 28, he requested that his absences since Oct. 23 be treated as FMLA-protected. The request was denied. On Nov. 12, the employee was terminated for "excessive absences" in violation of the company's attendance policy.

The employee brought a lawsuit challenging his termination. He alleged that his employer had violated the FMLA, by denying his leave request, and the ADA, by failing to provide him with a reasonable accommodation. The lower court dismissed the claims on summary judgment. The 6th U.S. Circuit Court of Appeals affirmed the dismissal.

With respect to the FMLA claim, the appeals court addressed whether the denial of FMLA leave damaged the employee. Because the employee had violated the rule on excessive absenteeism on Oct. 21 and was subsequently fired for that violation, the appeals court concluded that the employee could not have been damaged by the denial of FMLA leave on Oct. 23. In that the employee was terminated for an absenteeism infraction that occurred two days prior to the date for which he sought FMLA protection, the appeals court held that no FMLA claim could be made.

As for the ADA claim of a failure to reasonably accommodate, the employee argued that he was denied a week of medical leave between Oct. 23 and 30. However, because such leave would not have made the employee qualified for employment due to his excessive absenteeism that predated Oct. 23, the appeals court held that the employee was not entitled to such an accommodation.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The appeals court also dismissed an argument that the employer denied light-duty work as an accommodation based on an allegedly unlawful rule that required employees to be 100 percent fit to return to work. The requested accommodation—the elimination of heavy lifting for a shipping loader—would have required the removal of an essential function of the job. As such, regardless of whether the 100-percent-fit-to-return-to-work rule was unlawful, the requested accommodation was unreasonable and not required to be provided.

Lastly, the employee argued that he should have been temporarily transferred to another job as an ADA accommodation. However, there was no evidence that the employee had requested such a transfer. Therefore, the appeals court concluded that a transfer was not required.

Beckman v. Wal-Mart Stores, 6th Cir., No. 17-2250 (June 27, 2018).

Professional Pointer: Proper management of employee leaves and absenteeism, including careful tracking of the reason or reasons an employee is out of work, is essential to the lawful enforcement of workplace attendance rules.

Scott M. Wich is an attorney with Clifton Budd & DeMaria LLP in New York City.

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