Many compelling disability discrimination cases involve a situation where the employee has to call in sick due to his known serious medical condition or a disability, but the employer nevertheless penalizes that employee for those absences by writing that employee up or giving him a “point” for each absence, if there is a points systems in place. Once that employee accumulates a certain number of points, he is suspended or terminated, regardless of what the reasons for his absences are.
Whether a case for disability discrimination and wrongful termination can be made based on firing due to attendance issues, caused by disability or a medical condition very much depends on the specific of each case. This includes whether the employee put the employer on proper notice of his condition and the specific reasons for his more frequent absences, and whether employee cooperated with the employer in providing all the necessary medical information to explain why these absence are warranted. The facts of each termination should be analyzed carefully before the decision is made as to whether a valid claim for disability discrimination or FMLA violation can be made. It is important to get the employer’s story and reasoning for terminating an employee in order to determine whose arguments are stronger and more convincing in any give situation.
When employers apply their attendance or “point” policies rigidly, without taking into account the reasons for an employee’s disability, they do run the risk of violating the ADA, FEHA, FMLA and related disability anti-discrimination laws. This is because the law is clear that an employer has to work with an employee with a qualifying medical condition and resulting limitation on figuring out what adjustments can be made to accommodate that employee given his unique circumstances and limitations, regardless of what that employer’s internal policies are, as applied to all employees in general.