Reasonable Accommodation and Attendance

By on November 14, 2011 in Current Events, Human Resources with 10 Comments

Public law (Americans with Disability Act (ADA), 29 CFR, 1630.9) requires an agency to reasonably accommodate the known physical or mental limitations of a “qualified” employee with a disability, unless it can show the accommodation would impose an undue hardship on its operations.  

A qualified individual with a disability is a person with a disability who satisfies the job-related requirements of the position and who, with or without a reasonable accommodation can perform the essential functions of the position.  Accommodations that would cause an employer “undue hardship” are by definition unreasonable.  Yet, one of the most essential functions in most jobs is actual attendance at work.

Employers are entitled to expect regular and predictable attendance at work. The ADA does not require employers to tolerate chronic absenteeism even when attendance problems are caused by a person’s disability.  Determining what action to take for an employee with absenteeism is compounded by the Family Medical Leave Act (FMLA) whereas to deny a person FMLA leave for a serious illness can land an employer in a lot of hot water.  What is required by these laws must be treated equally and independently.

Too often the two basic requirements of attendance and reasonable accommodation present a huge conflict for supervisors, HR professionals, employees and third party appeals.  An employee’s disability or handicap often affects the person’s ability to report for duty on a regular and reliable basis, and to make an accommodation for an inconsistent work schedule affects nearly every major aspect of an operation in terms of scheduling, coverage, morale, and productivity. 

Fortunately, despite this clear conflict, the courts, EEOC and MSPB have generally sustained management’s adverse actions when it is evident that management has attempted to accommodate an employee, and the employee’s failure to maintain a regular work schedule, or whose leave has no foreseeable end has left the employer no other alternative but to remove the person for the efficiency of the service. 

The Postal Service was the first to use a charge successfully of “failure to maintain a regular work schedule” in Weber v U.S. Postal Service, 91 FMSR, 5110, March 20, 1991.  To use this charge successfully an agency must establish that: (i) regardless of whether the leave was approved, the employee was absent from duty; (ii) the absences continued beyond a reasonable period of time, and the employee was warned that an adverse action would follow if the employee did not return to duty on a regular basis; and (iii) and the employee’s position and functional requirements needed to be filled on a regular basis. 

A recent private sector case, Ousley v. New Beginnings C-Star Inc., October 14, 2011, upheld the removal of an employee because the employee was unable to provide his employer with a reasonable estimate as to when he would be able to return to duty.  In this case the employee sued under the ADA that New Beginnings failed to accommodate him by providing him with indefinite leave.  The employer argued successfully that a request for indefinite leave was not a reasonable accommodation and he was not a qualified disabled individual since he could not perform an essential function of his job since his attendance was not regular and reliable.  Moreover, he could not provide his employer with an estimated date for his return to work.  The court held that a request for a never ending leave of absence was unreasonable. 

The Board has long affirmed the charge of inability to perform especially when there is no end in sight to the absence.  In situations where an employee’s physician cannot predict when the employee will return to work or the employee is unable to work for a period of time, how long should an agency wait before initiating an adverse action? 

There is no definitive answer to that question.  A review of the case law, where removals were sustained, shows that agencies have initiated action as soon as six months or as long as three years.  Each agency must come to its own conclusion based upon the facts that they are confronted, and its mission needs.  I would suggest that the longer an agency waits undermines an argument that the person’s absence seriously hinders the organization’s ability to achieve its mission, and six months to a year would satisfy the test of reasonableness. 

A seminal case on this topic is Cook v. Department of the Army.  This case set down the following criteria as a yardstick for determining whether action may be taken successfully:

  1. The employee is sporadically absent
  2. For a large amount of time (e.g., 30 percent or more)
  3. Over a substantial period of time (up to a year)
  4. For medically documented reasons (so that approval of leave is immaterial)
  5. Medical evidence indicates that there is no end in sight to the chronic, and sporadic absences, and
  6. The employee’s skills and services are needed on a full-time basis.

In my managerial and human resources classes I have frequently asked the participants to recall their high school physics, asking what is a property of electricity?  The answer is that it will always take the path of least resistance.  Supervisors and managers enjoy that same property whereas human behavior too will take the path of least resistance.  A first-line supervisor can be the worst position in the federal service as they have an awesome responsibility to achieve organizational goals, and often saddled with a set of circumstances that distract them and/or their subordinates from that objective.   Time and attendance issues are not necessarily easy, but supervisors need the assurance and reassurance to stop wondering whether they are making the right decisions, and to start to manage with confidence.  Working with human resources and agency counsel can and will provide a road map to success.

© 2016 Robert Dietrich. All rights reserved. This article may not be reproduced without express written consent from Robert Dietrich.

About the Author

Bob Dietrich has more than 37 years of federal human resources experience and he is a widely known trainer on FMLA, FLSA, Employee and Labor Relations, HR for Supervisors, and is available to bring training to your agency. It is far cheaper to bring the instructor to the class as opposed to the class to the instructor. He may be contacted through Dennis Hermann & Associates.

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  1. happy2retire says:

    We had an employee who smoked and ended up with COPD and a host of other smoking related illnesses. She was allowed to work at home and she took leave on the days she was suppose to come in. She now cannot come to work at all due to her breathing problems. I assume she will apply for disability. Is she eligible for disability? I personally don’t think a person who becomes disabled due to smoking should get it.

  2. HRguru says:

    Does this sort of removal, when the person has a disability, create the same presumption of entitlement to disability benefits as would a removal for medical inability to perform?

  3. Quazyrabbit says:

    what about those workers who have been injured while on the job. After working through pain for 16 months and every medical order for treatment denied a fellow co-worker finally was unable to continue, and was ordered off duty under medical care by three physicians. This same worker was denied and comepnsation for his leave until his case was brought up as an EEO complaint. Does this person deserve to be discharged due to thier inability to continue work? Is filing for federal employee diabilty, which pays less than half of their wages appropriate? I belive this person has been off from work for over 68 months now and has never been cleared for work, and yet now, after over almost two years after their injury they have yet tor eceive any medical care except examinations, and when at each interval a Pghysician does order treatments or review for surgery once again the HR dept send a letter contesting their status, and the worker is once again put on hold, sent to yet another Physician for another review. Is this how our system works? Seriously, do Aministration just ruin people by breaking thm down, denying benifits so loudly advertized during the hiring process, and eventually hoping the claimant dies, goes broke and finally just goes away? Having seen thsi with my own eyes I have to admit I am seriously looking for another employer, the union, OWCP, DOL and each avenue we have all suggested in our attempts to help this much beloved co-worker appear to be of no hlp what-so-ever. Shame on us all if this is the status quo… DOes anyone have any advice, I have watched this person go from the top of ou unit to losing home, family, everything, and yet dely and deny appears to be the motto, and now we all have been advised to to make contact with this person as we all could be a part of litigation. I refuse to leave a friend and co-worker in such a state, warnings to shun will been “never heard” by myself.

  4. Nancy_pooley says:

    If you have an employee who is consistently absent due to disability then they may need to consider disability retirement or management needs to proceed with removal.  It is not fair to the taxpayer to continually subsidize employment of individuals who do not or will not contribute to achieving the mission.  I don’t mean this to be unfeeling to those who for no fault of their own are  truly disabled.  But there are  those who milk the system.  As an HR Specialist, I’ve seen such cases.  They get away with it  because management does not provide consistency in dealing with this issue. 

  5. Former ADA Officer says:

    Agree with all info except the statement that a disability often affects the ability to reliably report to work. JAN and other knowledgeble researchers report that absenteeism rates are usually lower for disabled folks than for the nondisabled.  And, PLEASE stop using the word “handicap,” as it refers to the days when those that were disabled had to beg for money (cap in hand).

    • Guest says:

      Seems to me that in 20 years, “disabled” will carry the same connotation that you say “handicapped” currently does.  I think what you should do is keep a list of words that you’ll sequentially introduce as the “new, non-offensive” name for handicapped/disabled/etc.  Every 20 years espouse the next work on the list as the polite version, and decry those who use the previous word on the list as insensitive.

      • Former ADA Officer says:

        I don’t see where I said the author was insensitive; I merely try to educate folks about using “new, non-offensive” terminology, such as asking folks not to use the “n” word to refer to Black individuals. I feel this is more productive than keeping lists.

    • tiredfed says:

      see this for word origin…
      Word Origin & History

      handicap
      c.1653, from hand in cap, a game whereby two bettors would engage a neutral umpire to determine the odds in an unequal contest. The bettors would put their hands holding forfeit money into a hat or cap. The umpire would announce the odds and the bettors would withdraw their hands — hands full meaning
      that they accepted the odds and the bet was on, hands empty meaning they did not accept the bet and were willing to forfeit the money. If one forfeited, then the money went to the other. If both agreed on either forfeiting or going ahead with the wager, then the umpire kept the money as payment. The custom, though not the name, is attested from 14c. Reference to horse racing is 1754 (Handy-Cap Match), where the umpire decrees the superior horse should carry extra weight as a “handicap;” this led to sense of “encumbrance, disability” first recorded 1890. The verb sense of “equalize chances of competitors” is first recorded 1852, but is implied in the horse-race sense. Meaning “put at a disadvantage” is 1864. The main modern sense, “disability,” is the last to develop; handicapped (adj.) is 1915.

      Online Etymology Dictionary, © 2010 Douglas Harper

  6. Marc Brenman says:

    Dietrich’s points are good ones. However (or in addition), some federal courts have been moving in the direction of permitting or requiring telecommuting as a reasonable accommodation. The person continues to do the work, but just not at the “office.”  So I would add to the list of considerations, “Can the work be done elsewhere?”  “Is it truly essential that the work be done at the “office”?  I have observed over the decades that often employers don’t make good (or any) judgments about what is essential.  Instead, when asked, they deem everything in the position description essential, which is almost always bogus.  We all know that PD are written to include the sun, moon, and stars, and applicants’ resumes and forms return the favor by claiming to be able to do just that.  Time to introduce some reality into the process…

    • SanDiegoRetired says:

      Good comments.  The basic issue of removing someone for prolonged absence predates the Weber case by many years.  The actual language comes from the [now defunct] Federal Personnel Manual and the language started with a declaration that the one exception to the rule that you can’t fire someone for excused absences that the MSPB has consistently upheld is . . .  We routinely removed people under that exception–usually people on workers’ compensation who had been gone for a year.

      Mr. Brenman is pointing to the more difficult issue–what is an essential function of the job?  He is correct that employers seem to consider convenience in supervising as part of it and therefore find everything is essential.  On the other hand the EEOC often does not consider anything about the mission of the agency to be essential.  This results in a very difficult situation because the two sides are hopelessly clinging to unreasonable positions.  Until we find some reasonable way of determining what is really essential we will be stuck with outrageous decisions going both ways.

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