January 2015
By: Alan E. Seneczko, Esq.
The interaction between the duty to accommodate under the ADA,
intermittent leave under the FMLA and an employee’s obligation to occasionally attend work has been a source of frustration for employers for many years.
Just how much is too much? At what point does an employee’s continued
intermittent unavailability for work render her unqualified for work? What
about employees who work from home? Do they also have an obligation to “report
for work” on a regular and reliable basis?
The Seventh Circuit recently addressed this issue in Taylor-Novotny v. Health Alliance Med.
Plans, Inc., Case No. 13-3652 (7th Cir. 2014), where it examined
an employer’s attendance expectations of an employee who worked out of her home
as an accommodation of her multiple sclerosis. The employee had a long history
of attendance problems for which she was repeatedly disciplined. Her condition
eventually prevented her from reporting to work and her employer allowed her to
work from home as an accommodation – but still required to log in to her
computer and be available during an agreed-upon work schedule, and to notify
her supervisor if she failed or was unable to do so. Not surprisingly, the
employee’s “attendance” issues continued and eventually resulted in her
termination. Not surprisingly, the employee then sued her employer alleging discrimination
on the basis of her disability and failure to accommodate, among other alleged
violations.
The Seventh Circuit dismissed her claim, finding, contrary to the
employee’s assertion, that regular attendance and punctuality are essential job
functions even for an individual who works out of her home, and that it was
reasonable for her employer to have such expectations. As a result, since she
was unable to meet them, she was not considered “qualified” for the position
and therefore unable to pursue her claim under the ADA.
Although a large dose of tolerance is generally required before an
employer can ever successfully argue that an employee’s continued, erratic
unavailability for work has rendered him/her unqualified for the position; that
option still remains. And . . . we have all dealt with a select few individuals
who have gotten very close to, if not crossed, that line.
Questions? Please contact WS
Attorney Alan E. Seneczko at (262) 560-9696, or email alseneczko@wesselssherman.com .
