Does law protect chronic absences?

The publicity generated by enactment of the Americans with Disabilities Act (ADA) has heightened public awareness of disability discrimination laws.

Although heralded in many quarters as pioneering legislation, ADA and its substantive provisions on employment concerns are not greatly different than those of the federal Rehabilitation Act of 1973 (a statute applicable to the federal government and entities that receive federal support) or of the Ohio Civil Rights Act.

In fact, the primary guidance available on the meaning of the intentionally vague ADA comes from cases decided under the Rehabilitation Act. Because of the substantial body of case law on handicap discrimination arising under the Rehabilitation Act, this will probably be true for years to come.

The largely undefined, yet apparently broad scope of the Ohio Civil Rights Act's handicap discrimination provisions is such that it is fair to say that enactment of the ADA did not greatly change the ground rules for Ohio employers in dealing with disabled people.

Public Awareness Increases

What has changed since ADA's enactment is public recognition that legal redress for handicap discrimination is very much available--an increase in awareness that has in turn raised the probability of litigating.

One of the most frequently asked questions in this new era of disability discrimination awareness is whether absenteeism policies are enforceable when an employee's absence is prompted by a condition covered under disability discrimination law.

The following is a discussion of this subject as it has developed under the Rehabilitation Act and Ohio Civil Rights Act. It would be surprising to discover that significantly different results will be obtained under the ADA.

Under the Rehabilitation Act case law, to establish a prima facie case, a plaintiff must:

...show that he/she is a handicapped person, is "otherwise qualified" for the position at issue, and was excluded from the position solely because of that handicap. If this is shown, the burden shifts to defendant to demonstrate that the challenged criteria are job-related and that "reasonable accommodation" is not possible. If the defendant can make this showing, the burden would shift once again, requiring the plaintiff to rebut the employer's evidence by showing that the accommodation of the handicap imposes no such undue hardship upon defendant...

While excessive absenteeism clearly presents a problem for any employer, the necessary level of attendance and regularity is a question of degree, depending on the circumstances. Thus, while no "bright-line" rule has developed from the case law, a key issue in disputes arising out of excessive absenteeism is whether the employer can offer a "reasonable accommodation" to the handicapped employee.

Case in Point

Magel v. Federal Reserve Bank of Philadelphia, for example, is representative of numerous holdings of Rehabilitation Act and state law cases on this issue.

In Magel, the employee was responsible for supervising the collection, editing and transmittal of deposit dates used by the Federal Reserve to calculate monetary aggregate reports. The employee developed chronic asthma, a condition that caused her to miss many work days during the winter months.

From 1986-1989, the worker missed an average of 30 days a year. After numerous attempts to accommodate the employee proved unsuccessful, her employment was terminated in December 1989.

The worker sued the employer, alleging illegal discrimination under Pennsylvania's Human Relations Act--a statute substantially the same as the Rehabilitation Act. The court interpreted the Pennsylvania statute as requiring the same showing as the Rehabilitation Act.

In Magel, the employer did not dispute that the employee did quality work when she was present or that she was handicapped. Further, the defendant conceded that the termination resulted from absenteeism caused by her disability. The employer argued, however, that she was not "otherwise qualified" to perform the job.

Following the rationale of the U.S. Supreme Court's ruling in Southeastern Community College v. Davis, the Magel court defined an "otherwise qualified" person as "one who is able to meet all of a program's requirements in spite of his handicap." The deciding issue was whether the employee could meet all of the job's requirements despite her excessive absenteeism. The court stated:

...plaintiff's inability to meet attendance standards is job-related. Regular attendance was an "essential function" of her position. The Act allows an employer to consider the requirements of a position when considering an employee's qualification for that position. This supervisor's absence reduced output, increased the need for overtime, adversely affected the staff's productivity and reduced the quality and timeliness of her unit's work. Her staff cut corners to accommodate plaintiff's absences. These factors made accommodation impractical...

Thus, the employer lawfully terminated the employee, though the firing was a direct result of the worker's disability.

In summary, there is substantial authority that holds regular attendance is a necessary feature of being "otherwise qualified" for the position at issue.

Still, there is a need for case-by-case analysis. Presumably, every employer who discharges or otherwise disciplines an employee for absenteeism due to a disability could be called upon to provide reasons why the absenteeism could not be reasonably accommodated. However, in most industrial settings, making such a demonstration probably is not difficult.