The Connecticut Appellate Court has an interesting case coming out officially early next week about an employer’s obligations to provide leave as a “reasonable accommodation”. You can download Barbabosa v. Board of Education here.
In it, the Court concludes that when attendance is an essential function of the job (as it will be for most jobs), an employee’s request for intermittent extended leave — that is, more days off — is not a reasonable accommodation under the state’s anti-discrimination laws.
The decision provides some much needed guidance to an area that has been increasingly litigated — namely whether a medical leave, above and beyond FMLA leave, is required as a reasonable accommodation under anti-discrimination laws. The court here finds that there are definite limits.
The facts of the case are pretty straightforward:
- Plaintiff was a full-time one-on-one, and then classroom paraprofessional for a school system.
- Throughout her employment, she had “long-standing and well documented issues with absenteeism and tardiness.”
- By November 2012, a meeting was held to discuss her continued absences and the “negative impact” her attendance was having on students. She was warned that further violations or unapproved absences could result in suspension.
- By the end of 2013, she was given another verbal warning and another meeting was held about her absences.
- In early January 2014, she filed a request for intermittent leave for the entire 2014 calendar year because of a serious health condition. The request was denied because she had not met the hours requirement under the FMLA.
- Eventually she was suspended for 30 days without pay in 2014 and yet still her employment was not terminated.
- The Plaintiff filed a claim under state law alleging that she was discriminated against and suspended because of her disability and that her employer had failed to provide her with a reasonable accommodation. The lower court granted summary judgment to the employer.
- On appeal, the Plaintiff argued that her generally positive performance reviews created an issue of fact as to whether she was “qualified” for her position. She also argued that her request for intermittent leave constituted a reasonable accommodation that did not eliminate the essential function of her job.
- The Appellate Court rejects both arguments.
The court starts off by stating that both this court and other federal courts “have recognized that attendance at work is a necessary job function.” And the court finds that there is no dispute that “Plaintiff failed to perform this essential function in the years leading up to her suspension. ”
The fact that she received generally positive performance reviews is of no concern to the court because the evaluations make repeated references to her attendance being an issue. Of the 13 reviews submitted by both parties, 10 contain a concern about her attendance or punctuality.
As to the request for intermittent leave, the court finds that because attendance is essential, it also shows that “plaintiff’s proposal for intermittent extended leave was not a reasonable accommodation, as a matter of law, because that proposal would eliminate the very essential job function it purports to address.”
The court continues: “Put another way, we fail to see how it is possible to perform the essential function of attending work through an accommodation that provides for even more absences from work”.
What are the takeaways from this case? Two things stand out.
First, the court was impressed by the patience showed by the employer and documentation provided at each step. Don’t try to do shortcuts.
Second, employees who are continually absent will receive little protection from the courts — assuming employers can show that attendance is critical to the job. Make sure to highlight that in job descriptions if there is going to be some question about that.