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:
- The employee is sporadically absent
- For a large amount of time (e.g., 30 percent or more)
- Over a substantial period of time (up to a year)
- For medically documented reasons (so that approval of leave is immaterial)
- Medical evidence indicates that there is no end in sight to the chronic, and sporadic absences, and
- 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.