Employment Law Daily 195 days of unplanned absences disqualified employee from ADA protection
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Friday, December 21, 2018

195 days of unplanned absences disqualified employee from ADA protection

By Lorene D. Park, J.D.

Affirming summary judgment against ADA discrimination and failure-to-accommodate claims of an employee who suffered from a lung disease, the Eighth Circuit found that she could not make a prima facie showing that she was a qualified individual because attendance was essential to her job and she had accumulated 195 days of unplanned absences for both personal and medical reasons in less than a year, which amounted to an inability to meet the essential function of presence at the workplace to do her job. Furthermore, her desired accommodation of additional absences was not one that would enable her to perform that essential function (Lipp v. Cargill Meat Solutions Corp., December 19, 2018, Grasz, L.).

From 1995 until 2014, the employee worked in a meat processing facility, stacking and supplying empty boxes to the production line, labeling boxes, and sometimes manually moving pallets and packed boxes. In 2000, she was diagnosed with an incurable lung disease, eosinophilic granuloma which made it difficult for her to walk, run, or otherwise exert herself physically, especially during “flare ups.” Beginning in October 2012, she required several work restrictions, including taking days off during flare ups (which occurred two to four times a year and lasted up to four days each time), and working no more than eight hours a day, five days a week, in a clean environment free from dust. She also needed lifting assistance when moving pallets. The employer accommodated all of these until her termination.

Attendance policy. The employer had an attendance policy with progressive discipline for unplanned absences. It stated that “[p]unctuality and regular attendance is crucial for efficient plant operations, safety, and moral[e].” Employees were required to call in absences daily to an automated system at least 30 minutes before a shift, unless on extended leave. One “occurrence” point was charged for each “unplanned” absence (as distinct from “planned” absences such as vacation, jury duty, or medical leave). There was no discipline for the first six points but the seventh and eighth points each result in written warnings and the ninth in termination. Violations and written warnings are effective for one year. An employee can take up to five single days of vacation in addition to six occurrence absences, but no vacation days are allowed after seven occurrence points. The policy provides that an employee may be required to verify absences, with verification presented to the nursing department upon return.

Assessed 194 points. In January 2014, the employee started a nine-month unplanned leave to care for her mother, who had significant health issues. During the first six months she provided three successive notes from her mother’s doctor. She called her absence in each day but by April had exhausted her FMLA leave. When she returned in October, she was issued a series of written notices and warnings for multiple attendance violations dating back to the prior year. She was informed that as of October 15 she had 194 points, was on “Last Chance for attendance,” and any further call ins or leaving early without authorization would result in termination.

The employee refused to sign the notices and warnings and asked an HR rep what would happen if she took off for her lung disease or doctor’s appointment. She was told to get permission from her foreman. Within a week of returning, she attended a doctor’s appointment. She provided a doctor’s note and didn’t receive a point. She asked her supervisor what would happen if she missed work due to a flare up and was told “it didn’t matter” and one day missed with non-approval would result in termination.

Termination. On October 30, the employee used the automated call-in system to report an absence. She believed she reported being “sick” due to a breathing flare up but acknowledges it was “possible” she keyed in the wrong buttons (the call was recorded as “vacation”). When she returned, she did not provide medical verification to the nursing department. On November 4, she was issued termination paperwork for violating the attendance policy. In a meeting with HR and her union rep, she explained the absence was due to her flare up. The employer gave her a chance to submit verification, but she did not submit doctor’s notes until well after her discharge.

No disability discrimination. Affirming summary judgment against the ADA discrimination claim, the appeals court first concluded that the employee’s failure to rebut evidence that her call in on October 30 was keyed in as being absent for “vacation” meant her call was not direct evidence of discrimination. Nor did the employee make out a prima facie case that she was a “qualified individual” protected by the ADA. The court has consistently held that “regular and reliable attendance is a necessary element of most jobs,” and that was true here as well. The attendance policy stated that regular attendance was “crucial” and the policy was enforced. In addition, the employee’s job duties included labeling and moving boxes, which required being present on site. Here, the employee took nine months of unplanned leave for reasons unrelated to her disability and, within two weeks of returning, missed another day without providing medical verification. This, said the court, amounted to an inability to perform her job.

No failure to accommodate. The appeals court also affirmed summary judgment against the employee’s ADA failure-to-accommodate claim, finding that her desired accommodation at the time of her termination—additional flare-up related absences without timely medical verification and almost immediately following 194 days of unplanned absences—was not one that would enable her to perform the essential function” of regular and reliable attendance. Instead, it would relieve her of that function and the ADA did not extend that far.

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