An employer is not required to alter its attendance policy to allow erratic, extended and indeterminate leave as a “reasonable accommodation,” according to a federal district court in Texas. Accordingly, the employer did not violate the Americans with Disabilities Act when it fired an employee for violating the company’s attendance policy, the court ruled in dismissing the case.
Employers generally are permitted to treat predictable, reliable and regular attendance as an essential job requirement, and are not required to accommodate erratic or unreliable attendance. The case is Solis vs. AT&T, 2015 WL 4139543 (W.D. Tex., July 9, 2015).
Facts of the Case
Isabel Solis, a former employee in AT&T’s customer service department, filed a lawsuit against the company alleging that it discriminated against her by not providing a reasonable accommodation under the ADA for her disabilities and firing her for unsatisfactory attendance.
AT&T’s written attendance policy made “being on the job as scheduled” a condition of employment, emphasizing that “good attendance and punctuality are required.” Solis had signed a signed a form summarizing the company’s attendance policy on at least three separate occasions
AT&T also had a program providing paid disability leave benefits to employees unable to work due to an injury or illness administered by the Integrated Disability Service Center. All workplace injuries and illnesses were reported to the IDSC.
In June 2010, Solis suffered an injury and began to take leave. She contacted the IDSC and was placed in the company’s disability benefits program. During this time, Solis submitted several certifications from her medical team, which continuously extended the date she would be able to return to work, only working sporadically. On Oct. 15, 2010, her manager informed Solis that she had exhausted her FMLA protected leave and was in violation of the company’s attendance policy.
Solis returned to work on Nov. 16 and was issued a third-level disciplinary action by her manager for her unprotected absences. Solis began another period of absences on Dec. 14, 2010 that continued into the New Year. Solis continued to display an erratic and indeterminate pattern of absences. Finally after a meeting of her manager, her union representative and the general manager on April 27, 2011, Solis was fired and subsequently filed her lawsuit.
Court Analysis
To prevail on her ADA claim, Solis had to show sufficient evidence that she was discriminated against because of her disability. The district court explained that ADA discrimination includes not making reasonable accommodations for the known physical or mental limitations of an otherwise qualified disabled individual, unless the employer can demonstrate that the accommodation would impose an undue hardship.
AT&T did not dispute that Solis had a disability. Instead it argued that she was not qualified for the job. Regular attendance is an essential function of the service representative position, and Solis did not perform that essential function. Solis countered that even if regular attendance were an essential function, the company failed to provide a reasonable accommodation to allow her to perform that function — namely, modifying the company’s attendance policy and granting her additional leave.
The court noted that Solis never asserted or submitted evidence that she notified the company that she needed or intended to be absent from work for almost four months following her FMLA leave. Instead, her absences were erratic and for different medical reasons. Each time IDSC received a date from Solis’ health care providers about her ability to return to work, the dates were changed and extended.
“This type of request for extended, erratic, and indeterminate leave is not the kind of accommodation that is reasonable under the ADA,” the court held.
Employer Takeaway
An employer is allowed to set job standards and requirements provided they apply them consistently and equally. They do not have to amend those requirements as a reasonable requirement under the ADA. Courts have consistently held that requests for indefinite and indeterminate leave are not a “reasonable” ADA accommodation.
Nevertheless, an employer must consider the ADA before discharging an employee for exceeding a maximum leave policy. However, employers are not required to modify and waive their leave policies or to accommodate erratic or unreliable attendance.