Employers often struggle with managing unpredictable attendance for employees with health conditions. A recent case from the U.S. Court of Appeals for the Eighth Circuit, Evans v. Cooperative Response Center, Inc., offers some insight in what employers can and cannot do under the Americans with Disabilities Act and the Family and Medical Leave Act. (Because this discussion is rather lengthy, we note that practical pointers can be found at the end of this article).

Background of the Case. The employer’s conduct policy provided that regular attendance was a “essential job function for all [Company] employees.” Its attendance policy provided that unexcused absences that are not FMLA-eligible or otherwise approved incur points that result in progressive discipline up to termination. In addition, it required employees to follow a two-step procedure when calling in to have the absence designated as FMLA leave, by calling the supervisor to notify of the absence and then calling human resources to notify them of the use of FMLA leave. Employees incurred an attendance point for failing to follow the process.

The employee, who was the only office assistant, suffered from an autoimmune disease that flared up intermittently. She was approved for FMLA leave of 2 half days (for medical appointments) and 2 full days (for flareups) per month, and was further informed that absences in excess of the FMLA-approved amounts would receive points. She subsequently had both FMLA-covered and non-FMLA absences (including those in excess of the FMLA-certified amount and those for which she failed to follow the two-step notification process), incurring points for the latter. At some point, the employer also asked the doctor to recertify the employee’s need for FMLA leave so it could determine if she needed additional FMLA leave, but the doctor’s response was to refer the employer to the prior certification. She was given a warning for her attendance and informed that her absences burdened co-workers and caused unacceptable delays in business functions. After the employee called out for an illness that did not appear to be related to her FMLA condition, she was terminated. She then sued, alleging numerous violations of the ADA and FMLA. The trial court dismissed all of her claims, and she appealed.

The Court’s Ruling on the ADA Claims. The Eighth Circuit upheld the dismissal of the employee’s ADA claims, which included both discrimination and failure to accommodate, among other things. In order to sustain a claim of disability discrimination, an employee must show that (1) they are disabled within the meaning of the ADA, (2) they are qualified to perform their essential job functions, with or without a reasonable accommodation, and (3) there is a causal connection between their disability and an adverse employment action.

In this case, the Eighth Circuit found that the employee was unable to meet the second requirement, since, as it has repeatedly held, “regular and reliable attendance is a necessary element of most jobs.” Whether that is the case will depend on evidence such as written job descriptions, as well as policies regarding attendance and conduct. In this case, the employer clearly had written policies designating attendance as an essential job function. Moreover, the employee’s job description contained tasks, such as answering the phone and greeting visitors, that could only be performed in the office. Her absences admittedly distracted co-workers from their own duties in covering for her. Of particular note, although the employee attempted to invoke her FMLA leave as an accommodation for her disability, the Eighth Circuit asserted, “[I]ntermittent FMLA leave does not excuse an employee from the essential functions of the job, such as the need for regular and reliable attendance.” Thus, the Eighth Circuit found that the employee was not qualified for her job, and consequently was not entitled to the protections of the ADA.

With regard to the employee’s failure to accommodate claim, the Eighth Circuit rejected her contention that she should have been able to take FMLA leave beyond the approved amount. Her requested accommodation – more leave – would not enable her to perform the essential job function of regular and reliable attendance.

The Eighth Circuit also stated that it was an employee’s responsibility to alert the employer that she needed an accommodation – in this case, that she needed leave beyond the 2½ approved FMLA days per month. But the employee did not do so. As the Eighth Circuit pointedly commented, “[The employee] cannot expect [the employer] to read her mind and know she secretly wanted [additional FMLA leave] and then sue [the employer] for not providing it.”

The Court’s Ruling on the FMLA Claims. The employee also asserted a number of FMLA claims, including interference with her FMLA rights. The employee’s FMLA interference claims encompassed several issues. First, she challenged the employer’s two-step notification system, as a number of the points that were assessed were based on her occasional failure to provide notification of her FMLA leave to both her supervisor and HR. The Eighth Circuit, however, rejected this summarily, noting that the regulations provide that employers may deny FMLA leave where an employee fails to “comply with the employer’s usual and customary notice and procedural requirements for requesting leave, absent unusual circumstances.” Moreover, it had previously upheld such a two-step procedure under the FMLA.

Additionally, the Eighth Circuit found that points were appropriately assessed on occasions where the employee failed to mention that her absence was related in any way to her FMLA condition. The FMLA regulations provide that an employee seeking leave for a qualifying reason “must specifically reference either the qualifying reason for leave or the need for FMLA leave. Calling in ‘sick’ without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”

The employee also argued that she was improperly assessed points for absences that were clearly connected to her FMLA condition, but were in excess of the number of absences certified by the doctor. She contended that the employer should have requested recertification when it became clear that she needed more leave. But, as the Eighth Circuit noted, the employer did in fact request just such a recertification – and was referred by the doctor to the prior certification of 2½ days per month. The Eighth Circuit found that the employer had no obligation to continue to request recertification, and that it was permissible for the employer to assess attendance points for the excess absences.

The Eighth Circuit further found that the employee was not entitled to use FMLA leave for a condition that was unrelated to her FMLA-certified condition and that did not constitute a serious health condition. As the Eighth Circuit noted, the FMLA does not protect absences that are not attributable to a serious health condition.

Lessons for Employers. This case provides a plethora of guidance for employers on the ADA and FMLA, including the following:

  • Regular and reliable job attendance may be – even is likely to be – an essential job function. Employers should review and, if necessary, revise their job descriptions and policies to ensure that they appropriately reflect the need for regular and reliable attendance, if this is the case. If an employee cannot meet this – or other essential job functions – with or without a reasonable accommodation, they are not qualified for the job and are not protected by the ADA.
  • In considering a request for accommodation, employers need not excuse the performance of an essential function – including regular and reliable attendance, if that is the case for the job in question. Intermittent leave is not a reasonable accommodation that enables an employee to meet the essential function of regular and reliable attendance.
  • It is the employee’s responsibility to notify their employer of their need for accommodation. We provide a caveat to this point – if the employee’s need for accommodation is obvious, then the employer may need to engage in the interactive discussion to determine if a reasonable accommodation is required. However, we suggest that, to the extent the employee’s “obvious” disability may be impacting their work performance, the employer address the performance and allow the employee to raise their need for accommodation in the context of that discussion – rather than assuming that the employee needs an accommodation.
  • Employers can establish a two-step call-in procedure that requires employees to contact both their supervisor and HR (or a third-party leave administrator) in order to have their absence treated as FMLA leave – and they can consider the leave unprotected and subject to discipline if the employee fails to follow this procedure. This two step procedure gives employers another tool in which to control the use and potential abuse of intermittent FMLA leave.
  • Employers need not assume that absences are FMLA-covered. If approved for intermittent FMLA, it is the employee’s responsibility to notify the employer that they are taking FMLA leave when they call out.
  • If an employee’s use of FMLA leave exceeds the certified amount, employers may be able to consider the excess leave to be unprotected and subject to discipline. We would recommend, however, as the employer here did, that the employer request a recertification from the doctor to confirm the employee’s leave needs before taking this action.
  • An employee is only entitled to use FMLA leave for a qualifying serious health condition. An existing FMLA certification does not cover new conditions. If the new condition may qualify for FMLA, the employer should provide a new set of certification forms to be completed. And if it does not qualify for FMLA, any absences in connection with that new condition will not be protected.