January 23rd, 2019 by Shawe Rosenthal
An employee who missed nine months of work for reasons unrelated to her disability, and then another day without medical verification, was found by the U.S. Court of Appeals for the Eighth Circuit to be unqualified to perform an essential function of her job – regular and reliable attendance.
In Lipp v. Cargill Meat Solutions Corp., the employee suffered from a lung disease that flared up two to four times a year, requiring her to miss work for two to four days each time. The employer accommodated this need, as well as providing her with a clean work environment. In 2014, she took nine months off to care for her mother. Upon her return to work, she was placed on a last chance agreement for attendance, based on this and other missed time. She then used the automated call-in system to report an absence, which recorded her absence as vacation. She was terminated for violation of the last chance agreement. In the termination meeting, she claimed the absence was actually for her medical condition, but did not provide medical verification although she was given the chance to do so.
The ADA prohibits discrimination against a “qualified” person on the basis of disability, meaning that the individual can perform the essential functions of the job with or without reasonable accommodation. The Eighth Circuit found that the employee was not qualified because she was unable to meet the essential job function of regular and reliable attendance, particularly for a job that required on-site presence. Moreover, this court has recognized that persistent absences from work can be excessive “even when the absences are with the employer’s permission,” such as the leave to care for the employee’s mother.
The Eighth Circuit also found that the employee’s requested accommodation – more leave for her flareups without medical verification – would not allow her to perform the essential function of regular and reliable attendance, “but would relieve her of that function.”
Thus, this case reminds employers that the accommodation of leave under the ADA, which can be one of the more frustrating accommodations to manage, is not without limits.
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