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Can an employee be terminated for excessive absences?

published in Oklahoma Employment Law Letter | September 1, 2013

The answer to the question our headline poses can be quite complicated?unless you live in Oklahoma. In the following case, a judge out of the Northern District of Oklahoma recently reaffirmed that attendance could be considered an essential job function under the Americans with Disabilities Act (ADA). Therefore, an employee may be terminated for excessive absences if the employer can prove that attendance is essential to the successful and satisfactory performance of the job.

Background

Terry Gandall was a flight simulator technician employed by FlightSafety International as a “technician simulator maintenance I” (SimTech) from February 2008 to April 2010. The position required him to walk, sit, climb, stoop, kneel, crouch, crawl, climb stairs, and regularly stand at least 50 percent of the time. One of the essential duties and responsibilities listed in his job description was “adherence to a work schedule including prompt and regular attendance.” According to FlightSafety, these duties and requirements are “essential to the successful and satisfactory performance of [the] job.”

Gandall claimed he is disabled because he has heart disease with resulting circulatory issues and leg cramps, which made him frequently absent from work. On the days he was absent, he would call FlightSafety to notify it of his absence.

In 2009, Gandall took intermittent leave under the Family and Medical Leave Act (FMLA). In November 2009, he received a medical release to return to work without restrictions. By November 30, he had exhausted his FMLA leave yet still was frequently absent into 2010. During this time, he was temporarily assigned to a desk job with a different division. Over 18 weeks, he missed more than 23 days of work. After his FMLA leave expired, he missed an additional 12 days and 18 hours.

Gandall retuned to work as a SimTech and missed another 170 hours of work between December 2, 2009, and April 26, 2010. His employment was finally terminated as a result of his excessive absences. He then filed suit under the ADA, claiming discriminatory termination and failure to accommodate.

Court’s decision

To file a claim under the ADA, an employee must establish that:

  1. He is “disabled” within the meaning of the ADA;
  2. He is qualified, with or without a reasonable accommodation, to perform the essential functions of the job; and
  3. He was discriminated against because of his disability.

The crux of the issue in this case was whether Gandall met his burden of establishing that he was qualified to perform the essential functions of his job with or without a reasonable accommodation.

Gandall’s job description included “adherence to a work schedule including prompt and regular attendance” as an essential duty and responsibility of a SimTech. The court found that “physical attendance in the workplace is itself generally considered an essential function.”

Two months before Gandall was terminated, he was counseled about his excessive absences and signed an agreement acknowledging that his doctor had given him no work restrictions. He also stated that “he should be able to come to work and perform his duties on a full-time basis . . . and if not he understands that FlightSafety will not have a position for him.” Furthermore, the company had undisputed evidence that his absences required it to juggle job assignments, and other team members had to pick up the slack to ensure the completion of SimTech jobs.

Gandall didn’t dispute that he couldn’t perform the attendance job function of his position but argued that he could have if FlightSafety had given him a reasonable accommodation. For example, he suggested that FlightSafety could have restructured his job or transferred him to another department or shift or could have provided him with part-time work or additional intermittent leave.

The ADA, however, doesn’t require the creation of a position, and reassignment isn’t required when the employee “is not qualified for a vacant job, no vacancy exists, or reassignment would have been a problem.” Regarding Gandall’s suggestion of intermittent leave, the ADA doesn’t require an employer to grant an employee indefinite leave as an accommodation.

Gandall also argued that FlightSafety was required to engage in an interactive process with him to determine if a reasonable accommodation existed. The court found, however, that an employer can still prevail without having sufficiently engaged in the interactive process if the employee failed to show that an accommodation was possible.

The court ruled in favor of FlightSafety, stating that Gandall didn’t provide any evidence that he was qualified to perform the essential duties of his job. It also stated that FlightSafety provided “significant, undisputed evidence that Gandall’s employment was terminated because of his excessive absences?a legitimate non- discriminatory business reason.” Gandall v. FlightSafety Int’l Inc., No. 12-CV-82-JED-PJC, 2013 WL 2444715, (N.D. Okla., June 5, 2013).

Bottom line

First, you need to determine if regular and consistent attendance is really essential for the performance of certain positions. If so, it’s wise to have an attendance policy in place and include prompt and consistent attendance as an essential function in the position’s written job description.

But remember, it’s your burden to prove that attendance is an essential job function. Therefore, you need to be certain that attendance is crucial to the fundamental job duties of the position. Furthermore, as in the case with Gandall, if absences are related to a medical issue, you have the duty to consider possible accommodations.