If you approve intermittent FMLA leave for an employee’s serious health condition, you’ll have a tough time arguing later that the employee’s disability means he’s unable to perform the essential functions of his job.
That’s because you’ve already shown that periodic absences didn’t interfere with running the business.
Recent case: For seven years, Southwest Airlines employee Edward Carmona usedto deal with a rare condition that left him unable to walk half the time.
When he ran out of, Southwest terminated him for excessive absences. He sued, alleging he should have been reasonably accommodated.
Southwest argued that attendance was an essential function of the job. But the court pointed out that the employer had managed just fine for seven years. It sent the case back to a lower court for trial. (Carmona v. Southwest Airlines, No. 08-51175, 5th Cir., 2010)