Your Disability and Your Work Attendance

disability and work attendanceMany of the medical conditions and disabilities affect an employee’s work attendance and specifically – an employee’s ability to report to work regularly at a scheduled time. Some of the more common such conditions are sleep apnea and extreme cases of depression where an employee is unable to even get out of bed in the morning due to severe panic attacks and other mental or psychological symptoms.

When an employee is disciplined or terminated for absences associated with these kinds of attendance issues, a careful analysis of the facts of his/her employment termination is needed to determine whether there is a legitimate wrongful termination claim that can be brought. This often turns on the following critical question:  would allowing an employee to have unexpected absences or be late without prior notice to the employer could be a reasonable accommodation to that employee’s disability at least for a limited period of time?  

In this kind of situation, some of the questions an employee and the attorney should be asking are:

  • Was an employer on notice of the employee’s disability/medical condition?
  • Did the employee request any kinds of accommodations, such as temporary medical leave or modified schedule that would help deal with the attendance issues? What was the employer’s response?
  • If the employer refused to provide modified schedule, do the employer’s reasons for that refusal seem to be legitimate and supported by business necessity.
  • Given the employee’s title and job duties, how critical is it for him/her to be punctual and not have any attendance issues?  Obviously, allowing an ER nurse to not report to work unexpectedly is much more difficult than allowing the same to a secretary of a large department where several other secretaries do what she does.
  • How many employees were performing the same job at the same time, and how burdensome it would be for an employer to have those other employees take over the disabled worker’s tasks while he is out?
  • Was the employee able to give advance notice to the employer about not being able to make it to work?

The above questions are pretty much governed by common sense, and their bottom line is whether it would be fair and reasonable to expect from the employer to be able to accommodate unscheduled absence given the nature and the size of the business, as well as the nature of that employee’s duties.

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