Wednesday, August 26, 2015

Sporadic Absence Can Be a Reasonable Accommodation

Let’s say you have an employee with Multiple Chemical Sensitivity who becomes ill when exposed to fragrances and other odors in the workplace. You have tried what seems like everything to accommodate her condition. You have moved her work location; shampooed the carpet around her work station; bought her an air purifier; issued a no fragrance policy on several occasions and promised discipline to violators. You have even bought the employee face masks. She still complains that the workplace makes her sick and she has absences well beyond her benefit days, which she attributes to flare-ups of her condition. You have run out of ideas. Can you conclude that no reasonable accommodation exists and the employee must be terminated because she cannot report to work regularly?

That’s exactly what the employer did in the case of Brady v. United Refrigeration, Inc. The employee sued claiming, among other things, that the company failed to provide her with a reasonable accommodation. The employer claimed that it had done everything possible to accommodate the employee’s condition so that she could come to work, which was an essential function of her job. The court disagreed.  It found that a question exists whether the employer had wrongfully denied the employee the accommodation of being absent.   

Employers sometimes ask how being absent from work can ever be a reasonable accommodation. The court in the Brady case summed it up this way:

[An]unpaid leave supplementing regular sick and personal days might, under [some circumstances], represent a reasonable accommodation. The federal courts that have permitted a leave of absence as a reasonable accommodation under the ADA have reasoned, explicitly or implicitly, that applying such a reasonable accommodation at the present time would enable the employee to perform his essential job functions in the near future. Although courts have found that an open-ended and indefinite request for leave does not constitute a reasonable accommodation, taking off  of work when her symptoms flare up is distinguishable from an employee who is completely missing in action for months with no end in sight.

It’s unfortunate for United Refrigeration, Inc. because it seems that they really did try to develop accommodations in the workplace for the affected employee. Unfortunately, they likely became frustrated with both trying to make the work area fragrance free as well as the employee’s unplanned absences.

Employers should take note that, as the court in this case stated, unpaid leave sometimes represents a reasonable accommodation, especially if it is for intermittent flare ups of a condition. Before an employer discharges an employee for these types of unplanned absences, it should have solid documentation to show that the employee’s absences are unduly burdensome or detrimental to the employer. This could be in the form of excessive involuntary overtime (and overtime costs) for other employees or a drop in productivity or services that can be quantified and attributable to the employee’s absence.