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Consider ADA before applying tardiness rules

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in Discrimination and Harassment,Firing,Human Resources

When an employee tells her supervisor she has a disability that makes it hard for her to get to work on time, it’s critical to factor that into any decision to apply a no-fault tardiness policy.

Refusing to do so may be disability discrimination.

Instead, talk to the employee about the problem and consider possible solutions. Only then—after you have engaged in the ADA interactive accommodations process—should you apply your tardiness rules and discipline the employee.

Recent case: Aquila was a nurse at a nursing home. She told her supervisor that she was anemic and had to undergo periodic injections to boost her iron reserves. Aquila also experienced fatigue and claimed she needed at least 12 hours of sleep each night.

The nursing home’s original tardiness policy allowed workers seven-minutes of leeway to clock in. But then it changed the policy, requiring everyone to arrive on time. It also instituted a no-fault policy calling for termination after three tardy arrivals within 30 days.

Aquila was disciplined with a warning after her first tardy. She explained again that her anemia made her tired and was affecting her arrival time. Still, the nursing home terminated her after she was late two more times that month.

Aquila sued, alleging disability discrimination and refusal to en­­gage in the ADA interactive reasonable accommodations process.

The court said the case could go to trial. It reasoned that the nursing home was on notice Aquila was disabled and needed an accommodation. The nursing home never discussed any accommodations. A jury will now decide the case. (Thomas v. Bala Nursing and Retirement Center, No. 11-5771, ED PA, 2012)

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