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Insist on attendance for all—disabled or not

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in Employment Law,FMLA Guidelines,Human Resources

Under the terms of the ADA, disabled employees have job protection—if they are able to perform the essential functions of their jobs, with or without accommodations. But those accommodations have to be reasonable, and sometimes disabled employees ask their employers to do things that are patently unreasonable—such as letting them skip work.

If you consider attendance an essential job function, courts probably won’t compel you to allow disabled employees to miss unreasonable amounts of work.

To make your case, you’ll need a robust absenteeism program aimed at reducing unscheduled time off among all employees—not just disabled ones. Employers that ignore poor attendance by some employees can’t turn around and insist that attendance is an essential function for disabled workers.

Recent case: Wilda Rios claimed she was disabled and missed considerable amounts of work. She missed many days for reasons unrelated to her claimed disability, and her employer consistently disciplined her for those unscheduled absences.

Rios sued, claiming her employer had failed to accommodate her disability.

But the court tossed out her case. It reasoned that it was quite clear that her employer considered attendance an essential function of her job. Because it did, she was not entitled to additional absences as a reasonable accommodation. (Rios v. Department of Education, No. 08-CV-1262, 2nd Cir., 2009)

Final note: Of course, you must make sure you allow all employees—disabled or not—to take the leave they are entitled to under the FMLA. Under the FMLA, it does not matter whether the time off is reasonable or interferes with essential job functions. But you may not have to give disabled employees more time off than the FMLA allows if you can show that attendance is an essential job function.

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