Employees with disabilities may be absent more than other employees. That doesn’t mean you can’t reasonably ask about those absences. In fact, courts have ruled that it’s not necessarily harassment even when supervisors land hard on disabled employees who are frequently no-shows.
If the employee states he’s been absent because of a complication related to the disability, follow up. Demand a medical excuse. Then, decide whether excusing the absences constitutes a reasonable accommodation. Otherwise, discipline according to your policy.
Recent case: Robert Barclay suffers from irritable bowel syndrome and took much time off from his job as a locomotive engineer. His supervisor was particularly hard on Barclay’s unscheduled absences, and finally fired him after he accumulated a long string of absences without providing any medical documentation or specifically blaming his disability.
Barclay sued, alleging that his supervisor had harassed him because of his disability. But the court tossed out his case. It said that the supervisor had been unpleasant and perhaps harbored a personal grudge when he constantly complained about the absences. But there was nothing that indicated the supervisor targeted Barclay because he was disabled. (Barclay v. Amtrak, No. 06-3482, 3rd Cir., 2007)
- How to Fire an Employee the Legal Way: 6 Termination Guidelines
- Independent inquiry saves the day on supervisor harassment
- Don't be fooled: 'Quit or be fired' won't stop employee from filing lawsuit
- St. Pete man claims he was fired for sex harassment complaints
- Employee sues union for unfair labor practice