Under the Family and Medical Leave Act of 1993 (the “FMLA”), eligible employees are guaranteed 12 weeks of unpaid leave following certain events, including the birth or adoption of a child, or their own or a family member’s serious health condition. The Americans with Disabilities Act (the “ADA”) protects a qualified individual with a disability from discrimination; a qualified individual is one who can perform the essential functions of his or her employment position, with or without reasonable accommodation. The FMLA and the ADA frequently overlap; for example, a short-term or long-term leave of absence or intermittent absences may be the reasonable accommodation requested by a disabled employee to permit him or her to perform his or her job duties.

In a case of first impression, the Eastern District of Virginia recently held that excessive absences by an employee, including those that constituted FMLA leave, can be used against an employee in an employer’s defense of claims under the ADA. Payne v. Fairfax County, 2006 WL 3196545, at *8 (E.D. Va. Nov. 1, 2006). Stuart Payne was an auto mechanic who was frequently absent from work because of a variety of illnesses, including a panic disorder, irritable bowel syndrome and Epstein-Barr disease. Payne exhausted all of his FMLA leave for the period October 1, 2001 through September 30, 2002; his intermittent, unplanned absences nevertheless continued and he was advised that attendance was critically important. Payne came close to exhausting all of his FMLA leave for the period October 1, 2002 through September 30, 2003.

For the following twelve-month period, he exhausted all of his FMLA leave as of August 3, 2004, and thereafter continued to have intermittent absences from work. Payne requested sick leave for the period August 20 through September 30, 2004, and the employer denied this request. Shortly thereafter, Payne retired.

Payne brought an action against his former employer alleging, among other things, that his employer had violated his rights under the FMLA and the ADA. The court ruled that “[a] regular and reliable level of attendance is an essential function of one’s job” and “[t]hus an employee who cannot meet the attendance requirements of his job cannot perform the essential functions of his job, and therefore cannot be a ‘qualified individual’ under the [ADA].” It was undisputed that Payne held a job that required his regular attendance at work and such attendance was essential, was repeatedly encouraged to minimize unscheduled absences and reminded of the attendance policy, and was informed that if he exceeded his FMLA entitlement his continued employment would be reexamined.

In light of these and other factors, the court held that an employee’s leave pursuant to the FMLA — although completely protected under the FMLA — may be held against that employee in determining whether he or she can perform the “essential function” of attending his or her job, within the meaning of the ADA. Because attendance was an essential function of Payne’s job and it was undisputed that he was continuously and unpredictably absent due to both FMLA leave and unprotected leave, the court ruled that the employee was not protected under the ADA because he could not perform the essential function of attendance required by his job. The court further analyzed whether a reasonable accommodation existed that would enable Payne to perform this essential function; the court ruled that the accommodation proposed by Payne — the employee sought to arrive at work late, leave early and take off whenever necessary — was not reasonable. Significance of the Court’s Holding for Employers 

  • The Payne court’s decision constitutes judicial recognition of the toll that excessive absences can have on employers and co-workers who would have to work harder or longer to ensure that work is adequately completed. 
  • Employers should consider adopting job descriptions stating that attendance is critical to job performance and should remind employees at appropriate times that such attendance is critical. 
  • The Payne court was confronted with an employee whose position required attendance at the job site and who had been frequently absent (and had allegedly been insubordinate). If attendance in the office is not essential to the individual’s job performance, the employer should consider the request of a qualified individual with a disability to work from home, regardless of whether the individual has used all of his or her FMLA leave. 
  • Although claims under the ADA were held by the Payne court to be unavailable under the facts of that case, employers must be careful not to create FMLA claims by retaliating under that statute against an employee with respect to FMLA leave taken by the employee.