Wednesday, April 26, 2006
As featured in The Carnival of Business #2:
One of the more difficult questions which I often had to answer from my clients while in practice was when, if ever, was it permissible to terminate someone who was frequently absent from work because of legitimate medical reasons.
This legal analysis would always require consideration of a number of different overlapping statutory schemes. Assuming that the injury did not take place at work (and thus, workers' compensation did not apply), and assuming that the person had a "serious health condition" for purposes of the FMLA, the standard advice was to give the employee up to 12 weeks of leave, requiring them to use whatever accrued paid leave they had along the way, and revisit the situation at the end of the 12 weeks to see if the worker could obtain a fitness for duty certification to come back to work.
However, even after the FMLA leave entitlement was exhausted, there was the further issue of whether the Americans with Disabilities Act required the employer to make an accommodation of the employee's disability by providing a modified work schedule which permitted additional absences from work.
And this where I have always had the most trouble in providing legal counsel. Assuming the individual met the definition of a qualified individual with a disability under the ADA, how long did the employer have to accommodate the employee through a modified or reduced work schedule? In other words, did there ever come a time when the employee was absent for such a long time or for such a large percentage of the time that the employer no longer had to accommodate them?
Well, the 8th Circuit Court of Appeals has now shed some light on that exact question. In Schierhoff v. GlaxoSmithKline, No. 05-1552 (8th Cir. Apr. 14, 2006), an employee was absent from work during a two year period over 40% of the time and had accumulated 172 days worth of absences. At that point, the company fired him finding that his absences "ha[d] impaired the operation of the Department and
diminished [his] effectiveness to the Company."
The 8th Circuit found against the employee who had alleged both age and disability discrimination. On the disability discrimination claim, the court found that the amount of absences that the employee had taken basically amounted to him not being able to perform the essential functions of the job. In other words, the Court seemed to suggest that because he was no longer a "qualified" individual with a disability, the company no longer had to provide him with an accommodation under the ADA.
Although the Court's reasoning makes some sense, it is still not clear how long a company like Glaxo would have to wait before saying that the employee no longer was fulfilling the essential functions of the job. Here, the number of absences were overwhelming, but where does the line lie? All the court stated in this regard was: "Schierhoff’s absences, which peaked at 96 days in a one-year period, are well beyond the level of non-attendance that we said in Pickens amounted to an inability to perform one’s job."
I'm still waiting for a court to better articulate where the line lies between the inability to perform the essential functions of a job and the right to have a modified work schedule as part of a permissible work accommodation.
Hat Tip: PlanSponsor.com