Absence Makes the Heart Grow Fonder…of Your Absence

by Melissa Mozingo

The Americans with Disabilities Act (ADA) compels employers to be accommodating and flexible, but the harsh reality is that there are some jobs that a person with certain disabilities simply cannot do.  When an employee suffering from a disability can no longer perform the essential functions of her job with or without a reasonable accommodation, the ADA allows the employer to terminate her.  Although this rule might be more easily applied when dealing with a physical disability that prevents an employee from completing critical tasks, it also holds true for an employee with a mental or emotional disability, particularly one that prevents her from working at all. The Sixth Circuit made this crystal clear in Williams v. AT&T Mobility Services LLC.

The Williams case involved an AT&T customer service representative (CSR) who suffered from depression and anxiety attacks that caused her to frequently miss work.  Because of her excessive absenteeism, AT&T terminated Williams for job abandonment and violating the attendance policy.  Williams sued AT&T under the ADA for failing to provide a reasonable accommodation, failing to engage in the interactive process, and terminating her based on her disability.  The U.S. District Court for the Western District of Tennessee granted summary judgment to AT&T as to all of Williams’s claims.  Williams appealed, arguing that she could have performed her job despite her depression and anxiety attacks if AT&T had given her leave from work for treatment, flexible scheduling, and additional breaks during her shifts.  The Sixth Circuit disagreed.

Regular Attendance Was an Essential Job Function.

Citing EEOC v. Ford Motor Co., the Sixth Circuit first explained that regular attendance qualified as an essential job function, so employees with excessive absences were not qualified individuals under the ADA because they failed to perform that essential function (i.e., regularly attend their jobs).  Considering AT&T’s strict Attendance Guidelines and declarations from two AT&T managers regarding the CSR position, the Sixth Circuit held that regular attendance was an essential function of the CSR position.  The court noted Williams’s poor attendance record, including being absent from work for entire months in two different years, taking a six-month leave and nearly three-month leave, and not getting her unscheduled absences approved for short-term disability leave.  Given this record, the Sixth Circuit held that Williams could not perform the essential function of regularly attending her job and was not qualified to be a CSR without a reasonable accommodation.

Williams Did Not Request Reasonable Accommodations.

Because Williams failed to show how her proposed accommodations would have enabled her to perform the essential functions of a CSR, the Sixth Circuit also found that AT&T did not fail to accommodate her.  Williams admitted that her anxiety attacks were unpredictable, she could not perform her job duties during her attacks, she could not function in a call center environment, and she could not focus due to her mental illness.  Importantly, neither Williams nor her health care providers explained how flexible scheduling and additional breaks would have mitigated these issues and enabled Williams to do her job.  Furthermore, the Sixth Circuit held that requiring AT&T to grant Williams additional leave was an unreasonable accommodation because Williams had a history of taking leaves, her condition never improved during those leaves, and she repeatedly failed to return to work when her health care providers estimated that she would be able to return.

After reiterating that an employer’s failure to engage in the interactive process is only actionable if the employee can demonstrate that she was qualified for the position, the Sixth Circuit stated that it was unnecessary to consider whether AT&T failed to engage in the interactive process because Williams was unqualified for her position with or without a reasonable accommodation.  The court also agreed with the district court that Williams failed to establish a prima facie case of disability discrimination or retaliation and affirmed the district court’s summary judgment ruling in favor of AT&T.


So, what is the Sixth Circuit telling us about how to deal with a mental disability that prevents an employee from coming to work? First, clearly articulate the essential functions of an employee’s job, preferably in writing (e.g., job description, employee handbook), and be sure to mention attendance is essential.  Second, assess whether the employee is performing the essential functions of her job (including coming to work), being sure to document and promptly inform the employee about deficiencies.  Third, discuss whether there are any reasonable accommodations available that would allow the employee to do her job.  Ask for recommendations from the employee’s health care providers during this interactive process.  If you and the employee (and the employee’s doctor) cannot come up with a reasonable accommodation that does not eliminate an essential job function of the position (i.e., coming to work), and you do not have a vacant position in which you can reasonably accommodate her, you may have to terminate the employee.  Although handling this type of issue may take some time, in this case the Sixth Circuit declared that AT&T did all that the ADA required.  Employers should follow its example.

If you or your staff would like training on this issue, or just require further information, the attorneys at Leasor Crass stand ready to assist.

Clash of the Titans: Does a Request for FMLA Leave Double as a Request for a Reasonable Accommodat

by Melissa Mozingo

by Melissa Mozingo

One of the toughest issues school districts face is how to handle an employee with a medical condition.  A recent case, Capps v. Mondelez Global LLC, posed this very interesting question.

Mr. Capps was a mixing technician for Mondelez International, a food and beverage company (makers of Oreos and Chips Ahoy!).  He was diagnosed with Avascular Necrosis, a degenerative bone disease.  He requested intermittent leave for flare-ups that limited his ability to walk, sit, stand, and work.  The company granted Mr. Capps at least (3) six-month periods of intermittent leave.  However, when Mr. Capps was arrested for driving under the influence of alcohol while he was out on a sick day, they became skeptical.

Mondelez International later fired Mr. Capps and he sued, asserting claims under the Americans with Disabilities Act (“ADA”) and the Family Medical Leave Act (“FMLA”), which included a claim that Mondelez violated the ADA when it did not consider his leave request as a plea for reasonable accommodations.  The U.S. District Court for the Eastern District of Pennsylvania granted summary judgment to the company.  It rejected Mr. Capps’s ADA failure-to-accommodate claim on the grounds that he never actually requested accommodations from Mondelez.  Ultimately, the trial court rejected Mr. Capps’s ADA claim, finding that a request for FMLA is not a request for a reasonable accommodation under the ADA.

Capps has appealed the dismissal of his claims, and the case is pending in the 3rd Circuit Court of Appeals.  The EEOC, which has consistently maintained this position for many years, and most recently in the May 9, 2016 resource document, filed an amicus brief in the case, supporting its own interpretation of the ADA, as well as the Department of Labor regulations interpreting FMLA.  Both the EEOC and the Department of Labor assert that the ADA and FMLA are complementary, and that an employer covered by the statutes has the affirmative duty to “determine an employee’s rights under each statute separately, and then consider whether the two statutes overlap regarding the appropriate actions to take.”

The EEOC’s FMLA/ADA Fact Sheet explains that a covered employee’s time-off request for a reason potentially related to a disability requires the employer to treat that request as one “for ADA reasonable accommodation as well as FMLA leave.”  Likewise, the Department of Labor’s regulations interpreting the FMLA make clear that FMLA leave may simultaneously be treated as a reasonable accommodation under the ADA.  Several federal courts of appeals have accepted this interpretation and acknowledged that a request for leave can implicate both the FMLA and ADA.

Unfortunately, there is no hard and fast rule about whether or not a request for leave also doubles as a request for an accommodation.  However, from a practical standpoint, when an employee requests FMLA leave, Human Resources should use it as an opportunity to learn the basics about the employee’s medical condition and how it will affect his/her ability to do the job.  The district should review any medical information submitted by the employee for FMLA leave and ask general questions about possible limitations.  With this information, the district can then engage the employee in a more informed dialogue about temporary or permanent adjustments that can be made once the employee returns to work.  When an accommodation has been requested or the need for an accommodation is obvious, the employer should initiate an interactive process with the employee.  Courts generally have held that the ADA interactive process requires employers to (1) analyze job functions to establish the essential and nonessential job tasks;  (2) identify the barriers to job performance by consulting with the employee to learn the employee’s precise limitations; and (3) explore the types of accommodations that would be most effective. Employers can demonstrate a good-faith attempt to accommodate by meeting with the employee, requesting additional information about the limitations, considering the employee’s requests, and discussing alternatives if a request is unreasonable.

If you have additional questions about this topic or any other school law topic, please do not hesitate to contact the attorneys at Leasor Crass, P.C.