Congress and state legislatures have expanded the reach of disability laws in recent years. Courts, however, have resisted attempts by employees seeking to broaden these laws further, issuing rulings confirming that (i) employees do not have to accommodate misconduct resulting from a disability, (ii) an employer may not be held liable under the Americans With Disabilities Act (the “ADA”) when attendance is an essential function of the job, even if an employee’s absenteeism is the result of a disability, and (iii) open-ended leave requests are not a reasonable accommodation.

Employers Are Not Required to Excuse Misconduct

Employers were rightfully alarmed when an administrative law judge (“ALJ”), on behalf of the New York State Division on Human Rights (the “Division”), found that a law firm discriminated against a bipolar lawyer when it terminated his employment for improperly attempting to charge clients for hotel stays, alcohol, limousines, calls to escort services, and adult movies. The Appellate Division, First Department allayed those concerns by vacating the Division’s award in Hazen v. Hill Betts & Nash, LLP, 92 A.D.3d 162, 936 N.Y.S.2d 164 (1st Dep’t 2012), and dismissing the complaint in an opinion that provided guidance, albeit mostly in the form of common sense, for employers.

When reviewing the findings of an ALJ under the New York State Human Rights Law (the “State Human Rights Law”), the court may consider only whether the Division’s determination is supported by “substantial evidence.” In doing so, the First Department engaged in an arguably searching review into the employer’s notice of the employee’s disability and his claims that his disability led to his misconduct. Such a review should be helpful to employers challenging future determinations by the Division.

As for what evidence is necessary to show an employer was on notice of an employee’s mental impairment, the First Department ruled that vague references to mental illness are insufficient to provide an employer with notice of an employee’s disability. Instead, the employer must receive information from which it may conclude that an employee’s illness was an “impairment” that is protected under the State Human Rights Law and would limit his workplace performance. For example, in the Hazen case the employer was told that the employee needed to “decompress,” that he was in a “terrible state,” that he needed to see a psychiatrist, and was suffering from a “mental ailment” and a “severe mood disorder.” The employer requested, but was never provided with, information regarding the employee’s workplace limitations and was never told that he had bipolar disorder. As a result, the First Department ruled that the employer did not have sufficient knowledge of the employee’s alleged disability for its decision to terminate his employment to have been causally related to that disability.

Even where an employer has notice of a mental impairment, misconduct is a legitimate, non-discriminatory reason for terminating an employee. Indeed, the First Department in Hazen began its opinion with the important holding that “a petitioner’s disability does not shield him from the consequences of workplace misconduct.” And the court quickly concluded that the employee was attempting to use his mental illness to protect himself from termination for incurring personal expenses on the employer’s corporate credit card. The First Department made clear that an employer is not required to excuse misconduct in order to accommodate an employee’s disability.

Finally, the employee also claimed he was retaliated against when his former law firm reported him to the First Department’s disciplinary committee. The court put significant weight on the law firm’s retention of an ethics expert to determine its obligations to report the employee’s misconduct. The expert advised the law firm that it had a duty to report the employee’s fraudulent activities and the court held that the firm did not retaliate against its employee when it reported his indiscretions. Going forward, this analysis has implications in other regulated industries. Thus, in cases where an employer reasonably believes it has a duty to report fraud or other misconduct, the retention of a third party to determine such obligations will help protect an employer from the finding of a retaliatory animus.

Termination for Absenteeism Caused by a Disability Is Not Unlawful When Attendance Is an Essential Function of the Job

In Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012), the Ninth Circuit Court of Appeals addressed whether a neo-natal intensive care nurse’s attendance was essential to her job under the ADA. The employer’s attendance policy sanctioned five unplanned absences of unlimited duration during a rolling twelvemonth period, as well as other permitted absences. The plaintiff sought an exception to this policy, requesting an accommodation that would have allowed her an unspecified number of unplanned absences due to the fact she had fibromyalgia. During her employment, the employee never worked full-time; nonetheless, she regularly exceeded the number of unplanned absences permitted even for fulltime employees.

Because regular attendance was an essential function of a neo-natal nursing position, the Ninth Circuit ruled that summary judgment in favor of the employer on the employee’s reasonable accommodation claim was proper. In addition to the “common sense notion that on-site regular attendance is an essential job function” for a neonatal nurse and the plaintiff’s admissions that her absences negatively affected her co-workers, the Ninth Circuit relied on the employer’s written job description for the position, which required strict adherence to the attendance policy. The Ninth Circuit rejected the plaintiff’s argument that her proposed variation to the attendance policy constituted a reasonable accommodation because she never quantified the number of unplanned absences she was seeking. The court concluded that the plaintiff’s “request so far exceeds the realm of reasonableness that her argument leads to a breakdown in well-established ADA analysis.”

Open-Ended Leave Requests Are Not Reasonable Accommodations

In Henry v. United Bank, 686 F.3d 50 (1st Cir. 2012), the United States Court of Appeals for the First Circuit addressed, among other things, whether an employee’s request for open-ended medical leave was a reasonable accommodation under a Massachusetts state law analogue to the ADA that is interpreted by reference to the ADA and related caselaw. In this case, the employee began experiencing medical issues in January 2008 and was able to perform her job for a time with accommodations provided by the employer. By July 1, 2008, the employee’s symptoms had worsened and her primary doctor provided her with a note stating she would be on “bed rest until further notice.” Thereafter, the employee’s primary doctor cleared her to return to work and the employer told the employee she was expected to return to work after a scheduled appointment with her neurologist. After the employee visited the neurologist, the doctor stated that “she is to remain out of work until further notice.” The employer thereafter terminated her employment (after the employer had given the employee a full twelve-week period of FMLA leave notwithstanding its position that the employee’s medical documentation did not support it).

In rejecting the employee’s position that Massachusetts law required the employer to grant an open-ended medical leave as a reasonable accommodation, the First Circuit ruled that “the record does not give rise to a jury question on whether [the plaintiff’s] apparent request for extended leave constitutes a reasonable accommodation.” The court based this ruling on the fact that “as of the date of her termination, the plaintiff could not work in her position at all and had given the bank neither a relative time frame for her anticipated recovery nor any indication of when or whether she would ever be able to return to her . . . position in the future.” The First Circuit held that “[s]uch an open-ended request for additional leave is just the type of wait-and-see approach that has been rejected as giving rise to a triable issue on reasonable accommodation.”

Applying similar principles in Robert v. Board of County Commissioners, 691 F.3d 1211 (10th Cir. 2012), the United States Court of Appeals for the Tenth Circuit examined the essential functions of an employee’s position and addressed whether an employee was entitled to an indefinite reprieve from one such essential function. In this case, the employee had worked as a supervisor of released adult offenders for ten years when she developed sacroiliac joint dysfunction. Following a lengthy leave of absence, the employee remained unable to perform all of her required duties and was terminated. The employee brought an action against the employer asserting various claims, including discrimination under the ADA.

The job description for the employee’s position stated that conducting on-site visits was an essential function, a task the employee conceded she was unable to perform because of her medical condition. The employee nonetheless argued that she was entitled to a temporary reprieve from this essential function. While the Tenth Circuit “recognize[d] that a brief leave of absence for medical treatment or recovery can be a reasonable accommodation,” the court described that this principle was limited by the following: “[t]he employee must provide the employer an estimated date when she can resume her essential duties” and “[a] leave request must assure an employer that an employee can perform the essential functions of her position in the ‘near future.’” Here, the court ruled that the plaintiff “failed to provide a definite estimate of her ability to resume site visits and that any further exemption following six months of temporary accommodation would be unreasonable as a matter of law.”

What Should Employers Do

The cases described above underscore the importance of drafting and implementing sound attendance policies and job descriptions and not excusing misconduct simply because it may have resulted from a disability. Among other things:

  • Misconduct is a legitimate, non-discriminatory reason for terminating an employee — even a disabled employee. When addressing the misconduct of a disabled individual, employers should focus on the misconduct and not the disability.
  • To quote Woody Allen, “90 percent of life is just showing up.” While merely showing up is certainly not all employers expect from their employees, in all but the rare instance where an employee’s on-site presence is not required, an employee who does not show up will be unable to perform his or her duties. Job descriptions and attendance policies should emphasize the importance of regular attendance to the performance of one’s duties. They should also underscore the business justification for the need for regular attendance, including the importance of face-to-face interaction with other employees and the need for colleagues to work as a cohesive team. Of course, job descriptions also should include the necessary educational, experience and substantive requirements of the position. 
  • Employers should carefully consider whether to permit employees to telecommute. Permitting certain employees to work from home on a regular basis and not others may raise issues as to whether regular attendance is an essential function.
  • The law does not require employers to grant openended leave requests. An employer should insist that an employee provide a date or time frame when the employee will be able to return to his or her position and perform the essential functions of that position.