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. Continue reading Cautious Optimism for Holding Disabled Employees Accountable for Attendance Issues
In a recent case (Hostettler v. College of Wooster), the US Sixth Circuit Court of Appeals held that a requirement that an employee work full time, without a duties-based reason for the requirement.
In this case, the plaintiff was an HR Generalist at College of Wooster. The plaintiff had recently had a baby and, when she was released to return to work, her doctor provided a restriction that the plaintiff could only work part-time because the plaintiff was suffering from postpartum depression and separation anxiety.
Initially, the employer granted the requested accommodation – allowing the employee to work 5 half days per week. The plaintiff worked that modified schedule for one month and then turned in a note from her doctor stating that she would need to continue working the modified schedule for an additional two months. The next day, the employee was terminated. The reason given – the department could not function properly because the plaintiff was not working full-time and working a full-time schedule was an essential function of the HR Generalist position. The plaintiff filed a lawsuit claiming that her termination was discriminatory. Continue reading NEW CASE: Without More, Full-Time Attendance Is Not An Essential Job Function
The California Department of Labor Standards Enforcement (“DLSE”) recently published additional FAQs relating to the California Paid Sick Leave law. These new FAQs address questions regarding:
- “Grandfathered” paid time off policies (or PTO plans in effect prior to January 1, 2015);
- Employee rates of pay, and
- The impact of state law on employer attendance policies.
With respect to “grandfathered” plans, the FAQs explains how a “grandfathered” plan complies with the paid sick leave law. This occurs when the “grandfathered” plan meets all of the accrual requirements set forth in the paid sick leave law, plus the following two criteria:
- The existing policy or plan made an amount of paid leave available that could be used for at least as many paid sick days as required under the new law, and
- The paid leave could be used under the same conditions as specified in the new law, or that had conditions more favorable to employees, (i.e., that provided more sick days than created under the new law, or that had a more favorable accrual rate, etc.)
If all of these criteria are met, then the employer is allowed to continue to use that existing paid time off plan in order to satisfy the paid sick leave requirements of the new law.
Rates of Pay
With respect to employee rates of pay, the FAQs clarify that under a grandfathered plan, the paid sick leave law does not change how employers compensate employees for paid time off under that time when time off is take for purposes other than California paid sick leave.
With respect to attendance policies, the FAQs clarify that employers are prohibited from disciplining employees for using accrued paid sick leave. Specifically, for employers who have an attendance “points” policy, employers cannot assess “points” against an employee for an absence that is covered under California law (including the California paid sick leave law
In addition, the FAQs address what happens when an employee has exhausted his/her California paid sick leave. If an employee does not have any accrued or available paid sick leave, (e.g., if the employee has already used all of his or her accrued and available paid sick leave under the employer’s policy, including as consistent with Labor Code section 233), and if the employee has an unscheduled absence that would otherwise violate the employer’s attendance policy, the paid sick leave law does not prohibit the employer from giving the employee an “occurrence” for such absence, even if the employee was actually sick and/or could have used paid sick leave for the absence if he or she had any such leave accrued.
The paid sick leave law does not “protect” all time off taken by an employee for illness or related purposes; it “protects” only an employee’s accrued and available paid sick leave as specified in the statute.
Take home for employers
It is recommended that all California employers review the updated FAQs and verify that their policies and practices comply with the new guidance.
An employee who did not follow his employer’s call-in requirements under its attendance policy or provide an appropriate medical certification supporting his need for leave under the federal Family and Medical Leave Act has failed to establish a claim for interference with his FMLA rights. The Court ruled that an employer may enforce its customary notice and attendance procedures against an employee claiming FMLA-protected leave, unless unusual circumstances justify the employee’s failure to comply with the requirements.