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Discipline for absences even if employee has disability

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in Discrimination and Harassment,FMLA Guidelines,Human Resources

Employees who take intermittent leave cause the greatest disruption in the workplace, according to comments received by the U.S. Labor Department on proposed revisions to the FMLA. That includes employees with disabilities who seem to need an inordinate—and unpredictable—number of absences.
    Naturally, employers may wonder if the absences aren’t motivated by a simple desire for time off rather than the disability or chronic illness.
    If you suspect abuse, don’t jump the gun. Instead, carefully and methodically make sure absences really are for a serious health condition or a result of disability. That means carefully following the certification procedures set up by Labor verifying the employee’s disability status.
    Recent case: Robert Barclay, who had irritable bowel syndrome, worked as a locomotive engineer. When his doctor prescribed medication, Barclay was off work because the drug could interfere with his alertness.
    When his condition improved, his doctors cleared him for work. Still, he took lots of unexcused time off. But the employer had him evaluated and found him fit to work. Therefore, when he had missed 28 shifts in a three-month period, the company fired him.
    Barclay sued, alleging disability discrimination. But the 3rd Circuit Court of Appeals sided with the railroad, saying it didn’t violate the ADA because it had medical documentation showing Barclay could work and because Barclay never provided medical proof for the absences. Barclay was dismissed for serial unexcused absences, not because he was disabled. (Barclay v. Amtrak, No. 06-3482, 3rd Cir., 2007)

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