Extended time off from work for employees with disabilities is sometimes unavoidable. This is especially true for certain conditions like lupus which may involve unpredictable and incapacitating flare-ups lasting several days or weeks at a time, resulting in significant work absences.
When employee absenteeism is disability-related, the challenge for your corporate clients is where to draw the line. After all, your clients have certain obligations to accommodate employees under the Americans with Disabilities Act (ADA). But what if unpredictable and prolonged absences will significantly impact business operations? Read on to learn more about employee absenteeism, the ADA, and how you can help your client draw the line.
Extended Leave and the ADA
Businesses with 15 or more employees are subject to the ADA which prohibits discrimination against individuals with disabilities, but only those who could perform the essential functions of a position with reasonable accommodations. So, for example, a vision-impaired individual would not likely be able to work as an airline pilot even with reasonable accommodations, and therefore no accommodations would be required. However, where an employer can reasonably accommodate a disability, they must do so unless it would result in an undue hardship, a determination that is based on the:
- Nature and cost of the accommodation
- Employer's financial resources
- Size of the workforce
- Impact on business operations
When it comes to disabilities impacting an employee's time and attendance at work, extended leave beyond any available base leave (i.e. annual leave, sick leave or personal leave) could be a form of accommodation under the ADA. However, this is only a reasonable accommodation where it would allow the employee to perform the essential functions of a job and where no undue hardship results.
Time and Attendance as an Essential Job Function
The EEOC has determined that while businesses may need to modify time and attendance policies to reasonably accommodate a disability, they need not remove these policies altogether and allow employees to work whenever a disability permits. Where a medical condition requires such an open schedule, the employee may be unable to perform the essential function of meeting minimum time and attendance requirements, and reasonable accommodations would not be required.
One way to draw a line with time and attendance requirements is through the use of maximum leave policies setting limits on the number of allowed absences per month or year. These policies have been recognized by the EEOC and by various courts. For example, the Sixth Circuit has upheld a policy mandating termination after a one year absence where the policy was non-discriminatory and uniform in application. Some employers set a flat limit of 12 weeks of extended leave, as this is the amount authorized under the Family Medical Leave Act.
However, your clients should be advised that the EEOC considers this the minimum amount and that a leave policy can be further modified if doing so would provide a reasonable accommodation without causing undue hardship. A maximum leave policy could therefore be strengthened by also emphasizing the negative business impact that would be caused by any leave beyond the maximum limit.
Leave Causing Undue Hardship
The use of excessive leave as a reasonable accommodation can also be challenged as causing an undue hardship especially where it results in the:
- Failure to meet goals or to serve customers adequately
- Inability to staff other employees to accomplish the work required
- Incurring of significant additional costs, such as when other employees must work overtime or when temporary employees must be hired
Therefore, it may be helpful for your clients to quantify and document specific harm caused by excessive employee absenteeism, as this can help to establish the point of undue hardship.
What Can Your Clients Do?
Your clients could benefit from having and enforcing disability-neutral maximum leave policies where your clients can play a role in defining what constitutes excessive absences. Along with this, ongoing communications with employees regarding time and attendance expectations and consequences will not only assist in showing that regular attendance is an essential function of the job, it can also help to establish undue hardship down the road. Additional accommodation measures can include:
- Converting an employee to a part-time position with reduced hours
- Additional telecommute days (if available)
- Reassignment to a vacant equivalent position (if available)
To learn more about employee absenteeism and the ADA, see the resources available at the Job Accommodation Network. For more information on representing corporate clients, see FindLaw's Corporate Counsel section.