Disabled employee always calling in sick?

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in Employment Law,FMLA Guidelines,Human Resources

Disabled employees may be en­­titled to some time off as an accommodation, but there are limits.

If an employee is constantly absent when his disability makes it impossible to work, you may be able to discharge him. That’s because attendance can be an essential function of a job—and constantly missing work may show that the employee can’t perform that essential function.

Recent case: Clarence worked in quality control, inspecting computer boards for Krypton Solutions. His job description listed attendance as an essential function.

Clarence was diagnosed with diabetes. At first, he managed his condition well. Then, he began asking for more and more time off for complications. Finally, in his last year with the company, he missed 40 days of work. He was ­terminated for absenteeism.

Clarence sued, alleging he should have been reasonably accommodated with more time off.

The court disagreed. It noted that attendance was essential and that employers aren’t required to provide unlimited days off for disabled employees. The case was dismissed. (Fuentes v. Krypton Solutions, No. 4:11-CV-581, ED TX, 2013)

Final notes: Ensure your job descriptions list regular attendance as an essential function. Before discharging, make sure you have allowed disabled employees to take 12 weeks of FMLA leave (if they’re eligible). Then consider whether any additional time off would be reasonable. Many times, it won’t be—especially if it appears the employee will continue to rack up time off with no end in sight.

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