HR Hero Line

How Do I Deal with a Disabled Worker’s Attendance Problems?

Q: We’ve been going through the interactive process with one of our employees (we’ll call him Mike). As a result, we’ve been accommodating him with unpaid leaves for the last year. It’s been tough, and Mike’s supervisors have told me more than once that they need to terminate him and move on. According to them, every time he finally starts doing his job, he has to take another leave. In short, they’ve grown tired of the roller coaster ride and attendance problems.

In addition to the inconsistency, Mike’s supervisors feel like he uses his disability as a way to get out of work when he wants a day, or even a week, off. He also uses it as an excuse when he arrives late, although we’ve told him that being on time is an essential function of his job. We’ve also told him that if his disability won’t allow him to get to work on time and if a modification to his schedule won’t accommodate him, we might have to transfer him to another position or terminate his employment. The bottom line is, he’s received fair warning that coming in late can’t be tolerated. In fact, his last warning specifically stated that failure to arrive on time again would lead to additional discipline, up to and including termination.

We issued that warning about two months ago. Ever since then, Mike’s been on time to work every day. That leads us to believe that his disability wasn’t causing him to be late in the first place. However, his performance has been slipping, and his supervisors have again started talking about terminating him. They’re concerned that if his performance slips too much and he begins to think his job may be in jeopardy, he might suddenly need another unpaid leave. I told them that terminating him at this point would be pretty risky because it might look like it was his disability and not his slipping performance that prompted the termination. They grudgingly accepted my decision not to terminate.

This morning I received a call from one of Mike’s supervisors, who said that Mike arrived 10 minutes late for work today. Given the last warning he received, they feel the time has come to let him go. I’m a little uneasy about terminating him, but he did receive fair warning about his tardiness. Do we finally have the “smoking gun” we need to fire him safely?

Learn more about laws preventing disability discrimination in the ADA Compliance Manual

A: Not a chance; in fact, the only proverbial gun I see is the one pointed right at you if you go forward with the termination.

First, let’s be very clear: If you can prove that (1) Mike’s tardiness was not a result of his disability, (2) he demonstrates an inability (even with accommodation) to perform the essential function of coming to work on time, and (3) he was terminated because of poor work performance, then legally you should win. The problem is, it’s not always about what’s “legal,” but about what you can prove. And I think you’d have a difficult time proving that Mike being 10 minutes late to work — even though he was warned about it in the past — was the actual reason for his termination.

Additionally, should Mike file a lawsuit, it would likely require a jury to decide the motivation of the decisionmakers. In other words, it’s not the type of claim that you could get thrown out early on legal grounds. With that said, I don’t think I have to tell you how much you want to avoid a jury trial. Besides the fact that taking a case to trial is very expensive so far as attorneys’ fees go, you’d probably have a pretty hostile jury in this case. That’s because you fired somebody who has a disability — for being 10 minutes late to work.

I anticipate that jurors would be very sympathetic to Mike, and they would most likely find your reason for terminating him suspect at best. In the end, if I were a betting man, I would put high odds on you losing this lawsuit. If Mike’s going to get fired, you’re going to need a lot more smoke coming out of that gun.

HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act and discrimination