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ADA: ‘Unlimited’ sick days aren’t reasonable

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in Compensation and Benefits

Under the ADA, employers must accommodate an employee’s disabilities. Reasonable accommodations can include additional time off, such as more unpaid leave after the employee has used up FMLA and other available leave.

But, at some point, providing more leave interferes with performance of the job’s essential functions. That point is easily reached when the employee demands unlimited sick days as an accommodation.

Recent case: Pauline worked in a hospital emergency room, performing blood work and transporting patients.

She took several extended FMLA leaves when she developed breast cancer and needed surgery and follow-up care. Even after her cancer was in remission, she continued to suffer from related problems. She often had to miss work, come in late or leave early.

Pauline’s attendance problems continued for several years. She frequently was warned that continued absences would mean termination under the hospital’s no-fault attendance policy, which provided for progressive discipline. But she was also allowed to take medical absences when she needed them for extended periods of time.

However, after too many absences, she was terminated. She sued, alleging that she should have been accommodated with unlimited absences once she had used up other available leave.

The court tossed out her case. It reasoned that unlimited sick days as an accommodation is unreasonable as a matter of law. (Francis v. Wyckoff Heights Medical Center, No 13-CV-2813, ED NY, 2016)

Final note: The hospital was patient with Pauline and made sure that when warranted, she received the medical leave she was entitled to under the FMLA. It wasn’t until it became obvious that no amount of time off would allow her to perform her job regularly that the hospital finally terminated her.

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