Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues

Many employers and HR professionals view disabled employees as being immune to disciplinary actions when they have attendance violations. This view is often based on past experience and the many negative “war stories,” that are often shared when employers are sued for disability discrimination – even after they believe that the were doing everything correctly.  The stress of these stories and experiences often causes business leaders to become overly cautious and implement practices where disabled employees are never terminated and never disciplined. While that might suit some situations, recent appellate court decisions have shown that such over-corrections might not be necessary in every case.

There are three recent decisions that come from the Court Appeals that point to the same conclusion – employers can consider attendance as essential to the function of just about and job and in some cases can terminate disabled employees for attendance related issues. The caveat of doing such terminations is that the attendance issues must not be for reasons that are protected leave under laws such as the Family and Medical Leave Act (FMLA), the Americans with Disabilities Act (ADA), and any state laws of this nature, including local sick leave laws. When unapproved absences are not related to a protected leave, these decisions show that courts have leaned in favor of employers being able to terminate disabled employees.

The cases in question are: Lipp v. Cargill Meat Solutions; Trautman v. Time Warner Cable Texas; and Vitti v. Macy’s Inc., No. 17-3493 (2nd Circuit, 12/21/18).  Each of theses cases ruled in favor of the employer who terminated an employee with a disability who displayed poor attendance on a habitual basis.

In Lipp v. Cargill, the employer implemented a common attendance policy which tracked presence infractions on a point-based system. At Cargill, the allowable amount of presence occurrences that an employee could incur prior to being terminated was 9 points. When they terminated the disabled employee in this case, the employee had a whopping 195 points of presence occurrences.  All of these points were accrued in a period of time that was less than a year. Due to this overwhelming amount absences (that were not during her protected leave), the court determined that the employee was not meeting the qualifications of her position which first and foremost required the employee to present do her job.

Similarly, in Trautman v. Time Warner Cable, the employer based their attendance policy off an hour-based system rather than a point-based one. Their threshold for the amount of absences that would equate to a terminable offence was 112 hours of unexcused and unprotected absences in any rolling 12-month period. The employee in this case totaled unexcused and unprotected absences in excess of 200 total hours.  Since Time Warner made sure to distinguish that these absences that were counted toward her termination were not related to her disability, the affirming for summary judgement in this case was because no disability discrimination could be substantiated.  Time Warner also did good job proving that they enforced their attendance policy with all other non-disabled employees the same way as they treated this employee.

Finally, in Vitti v. Macy’s Inc., the second circuit court of appeals ruled that an employee who was terminated due to continual absences and lateness (for unauthorized, non-protected purposes) after numerous write-ups. This case had an interesting twist that has caused similar conundrums for many HR practitioners. The employer terminated the employee soon after she returned from her leave. This led the plaintiff to argue that her termination was more related to her disability, since the date of the termination was closer to her absences for her disability than it was to her absences that were not related to the disability. Surprisingly, the court ruled that this argument was not valid because of the already established written warnings that were already in place prior to the leave for disability. Additionally, the second circuit court of appeals continued to strengthen the affirmation that attendance to the workplace is an essential function of her job. In order to be a successful cosmologist at the employer’s Macy’s store, the plaintiff’s attendance was ruled to required in order for her to qualify for you job.

Each of these cases provides a growing trend of examples of employers’ ability to take employment action with employees who violate attendance policies. It also goes to strengthen the argument that attendance is among the most important essential functions of most jobs.   However, with any adverse action that is taken with a disabled employee, it is always highly recommended that employers consult with an HR Professional or qualified employment attorney prior to taking those actions.