The United States Court of Appeals for the Eighth Circuit (which oversees Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota, and South Dakota) recently addressed whether an employee could pursue a claim under the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”) when the employee requested additional days off beyond that which she was entitled to under both laws, as an accommodation. The Eighth Circuit ruled that regular and reliable attendance is a necessary element of most jobs, and therefore additional time would not be warranted.
Background
The employee began suffering from a variety of medical symptoms and was subsequently diagnosed as having reactive arthritis. This diagnosis was certified to the employer by a physician and the employer was advised that the employee would require one and a half to two days off per month to address the condition. After receiving the certified diagnosis, the employer authorized the employee to take up to two full days and two half days of intermittent FMLA leave per month, but noted that any absences beyond the approved leave would count against her record per company policy.
Over the course of the next two years the employee took intermittent FMLA leave. However, on eleven separate occasions the employee took leave which was not FMLA approved. During that time, the employee called out of work due to symptoms unrelated to those approved for her FMLA leave. Two days later, the employee left work during a shift and did not state that she was seeking FMLA leave or suffering from symptoms related to her approved condition. This last absence placed the employee in violation of the company’s attendance policy for the year and as a result the employee was terminated for excessive absences.
The employee brought suit against the employer claiming violations of the ADA and the FMLA. According to the employee, the employer violated these provisions by discriminating and relating against her because she was disabled, as defined by the ADA. The employee also claimed that her employer failed to accommodate her disability and likewise violated her rights under the FMLA by denying her the leave to which she was entitled.
After discovery in the case, the employer moved for a judgment in its favor arguing that it had not violated the ADA or the FMLA. The district court ruled in favor of the employer and ended the case. The employee appealed that decision.
Appellate Court’s Decision
Because the employee alleged that her termination violated the ADA’s prohibition against discharging an employee due to a disability, it was her burden to prove that the termination was due to the disability. In order to meet this burden, the employee must prove: (1) that she was disabled as defined by the ADA; (2) that she was still able to perform the essential functions of her job with or without a reasonable accommodation; and (3) a causal connection existed between the adverse employment action (the termination in this matter) and the disability. If all three factors are proven, the burden shifts to the employer to set forth a legitimate, nondiscriminatory, reason for the adverse action. If the employer does set forth a reason for the adverse action, the burden shifts back to the employee to show why the employer’s proffered reason was just pretext for the discrimination.
Applying the above factors, the appellate court began its analysis by noting that many of the employee’s duties required her to be physically present at the office of her employer. The appellate court stated that it has been consistently found that regular and reliable attendance is a necessary element of most jobs. Thus, an employee – like the employee in this matter – who cannot appear at work on a regular basis, cannot satisfy the essential functions of her job. The appellate court further noted that the employer established that attendance was an essential function of the employee’s job as it was clearly set forth in the employer’s written attendance policy. Finding that attendance was an essential function of the job and that the employee’s termination was in compliance with the employer’s written policy, the appellate court concluded that the employer had not violated the terms of the ADA and upheld the district court’s ruling.
Turning to the employee’s FMLA claim, the appellate court concluded that intermittent FMLA leave does not excuse an employee from the essential functions of the job. Finding that the employee could not complete an essential element of her job without an accommodation, the appellate court next analyzed whether the employer could reasonably accommodate the employee’s disability without facing an “undue hardship.” As noted by the appellate court, depending on an employee’s assigned duties and the employer’s needs, a reasonable accommodation could include part-time work or a modified work schedule. Here, the employee argued that a reasonable accommodation would have been for the employer to permit her to take additional FMLA leave beyond what was permitted. However, as the appellate court had already determined that attendance was an essential element of the employee’s job, the appellate court concluded that permitting the employee more leave away from work would not be a reasonable accommodation. Also, because the employee could not establish an ADA violation, her ADA retaliation claim failed too.
Turning last to the employee’s FMLA entitlement claim, the appellate court noted to succeed the employee must prove (1) that she was eligible for FMLA leave; (2) the employer was on notice of her need for FMLA leave; and (3) the employer denied the benefits to which the employee was entitled to under the FMLA. The appellate court found that the employee’s claim failed as she failed to properly notify her employer that she needed FMLA leave on several occasions. The appellate court also found that the employee claim failed because the employee sought leave for reasons unrelated to her FMLA approved illness.
Takeaway
This case shows the importance of having clear, written company policies that are consistently applied. The employer involved in this lawsuit was able to avoid ADA and FMLA liability by having procedures in place to ensure compliance with the appropriate laws and to make reasonable accommodations. Additionally, by having clear job descriptions for employee positions that set forth the essential requirements and functions of the job, including regular and reliable attendance, the employer was further shielded from liability. Employers should regularly review their policies, procedures, and handbooks to make sure they are updated under current law. Likewise, employers should regularly review and update job descriptions as warranted. Finally, employers should take steps, including training management and supervisory employees, to ensure that the policies, procedures, and handbooks are being consistently applied.
R. Eddie Wayland is a partner with the law firm of King & Ballow. You may reach Mr. Wayland at (615) 726-5430 or at [email protected]. The foregoing materials, discussion and comments have been abridged from laws, court decisions, and administrative rulings and should not be construed as legal advice on specific situations or subjects.
