Handle absence problems correctly; learn ADA, FMLA interplay

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in Discrimination and Harassment,Employment Law,FMLA Guidelines,Human Resources

If an employee has attendance problems due to health issues, those absences may not be covered by the ADA even if they're covered by the FMLA. That's especially true if regular attendance is an essential job function.

While you must accommodate disabled employees if they can perform the job's essential functions (with or without an accommodation), how far you must adapt depends on the specific job.

Start with the FMLA to see if the problem warrants time off. The FMLA allows covered employees to take up to 12 weeks unpaid FMLA leave per year, regardless of how important attendance may be to that position.

Once disabled employees exhaust their FMLA time, it's time to apply the ADA's reasonable accommodation rule.

If you can show that an employee's job is dependent on regular attendance, you may be able to claim that it's unreasonable to grant the employee more time off as an ADA accommodation. However, if your organization can easily shift employees around to allow more time off, you can't claim that the person's attendance is an essential function. As a result, you'd need to grant more time off.

Recent case: Mechanic James Schierhoff had a spotty attendance record, frequently exhausting his FMLA leave and taking more time for illness. He missed about 40 percent of work time over a 20-month period. The company fired him for excessive absenteeism, even though all the time off had been approved.

The justification? His absences affected company operations. The court agreed, saying regular and reliable attendance are legitimate employer expectations. (Schierhoff v. GlaxoSmithKline, No 05-1552, 8th Cir., 2006)

Final tip:Is your organization too small to be covered by the FMLA, but large enough for ADA coverage (i.e., it has between 16 and 49 employees)? If so, you'll have an easier time requiring fewer absences for a disabled employee without violating the ADA.

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