Over 3,500 contractor locations will be receiving scheduling letters according to the fiscal year (FY) 2019 Corporate Scheduling Announcement Letter (CSAL) list that the Office of Federal Contract Compliance Programs (OFCCP) published in its Freedom of Information Act (FOIA) Library on March 25, 2019. In addition to the anticipated compliance reviews by OFCCP, contractors should be aware of another concern, often overlooked, which is the individual right that an applicant, employee, or former employee has to file a disability discrimination complaint directly against a federal government contractor with the OFCCP. Complaints of disability discrimination generally allege (1) that the applicant or employee was disabled, and the contractor took an adverse action against the individual because of the disability, and/or (2) the employer failed to provide a reasonable accommodation to an applicant or employee with a known disability. There are a variety of disabilities that may affect an individual's ability to perform his or her job duties, as there are possible accommodations that may be considered as reasonable. This article focuses on a common problem – how to manage excessive absenteeism by an employee with a disability, and what steps an employer may take to minimize liability, if termination of employment is inevitable.

A claim of discrimination based on a disability and excessive absenteeism usually emerges from a similar pattern of events: An employee experiences an injury (non-job related) or a medical condition that requires time off from work. The employee, who is entitled to leave under the Family and Medical Leave Act (FMLA), will take the maximum time allowed by law and will still not be able to return to work. The employer may have other unpaid leave of absence options that an employee may request, but the employer grants leaves based on its discretion and business needs. The disabled employee continues to take unscheduled time off in violation of the attendance policy, which disrupts the business and causes an undue hardship on the company's operation. The employer ultimately terminates the employee's employment for violation of the company's attendance policy. The employee files a complaint alleging that the company discriminated against the employee because of the disability and/or the company failed to reasonably accommodate the disability. This scenario is not uncommon and there has been much litigation over it. There are no clear-cut answers on how to handle these claims, but there are court decisions, regulations, and practical recommendations that provide guidance on managing the outcome.
 

The Elements of a Disability Discrimination Complaint

In order to prove a complaint of disability discrimination under the Rehabilitation Act of 1973, as amended, or the Americans with Disabilities Act of 1990 (ADA), as amended, a plaintiff must prove (1) that he or she has a disability within the meaning of the ADA or Rehabilitation Act, (2) that he or she is a "qualified individual" to perform the essential functions of his or her job, with or without an accommodation, and (3) that the employer took an adverse action because of his or her disability. This is the prima facie case that an employee must prove to state a claim of disability discrimination. For purposes of this discussion, we will assume that the employee alleging discrimination has a disability, and that an adverse action has been taken, namely termination of employment. The remaining factor to consider is whether the employee is "qualified" to perform the essential functions of his or her position, with or without a reasonable accommodation.

When it comes to attendance at work, federal courts overwhelmingly find that regular and reliable attendance at work is an "essential" job function:

• The ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability . . . attendance at the job site is a basic requirement of most jobs.
• Attendance is an essential function for factory positions . . . where the work must be done on the employer's premises; maintenance and production functions cannot be performed if the employee is not at work.
• Common sense dictates that regular attendance is usually an essential function in every employment setting, if one is not present, he is usually unable to perform his job.
• The rather common-sense idea is that if one is not able to be at work, one cannot be a qualified individual.
• An employer is generally permitted to treat regular attendance as an essential job requirement and need not accommodate erratic or unreliable attendance.

Assuming that attendance at work is essential for most jobs, the next question is whether there is a reasonable accommodation that enables the employee to come to work and perform the job. If not, the individual is not qualified and, therefore, does not satisfy the prima facie case. Under these facts, the analysis should end, but too often OFCCP will conclude that more discussion about a reasonable accommodation should occur.
 

Is There a Reasonable Accommodation for the Employee Who Cannot Come to Work?

Here is where the analysis becomes circular. In many situations, an absent employee cannot perform the essential functions of his or her job because he or she is not at the worksite. What accommodation can be provided to the absent employee so that he or she can come to work to do the job? It is incumbent upon the ADA plaintiff to assert not only the disability, but also any limitation resulting from it, and request an accommodation. An employee who does not provide information to the employer on "what should have or could have been done" to accommodate his or her disability will fail to state a claim. Unfortunately, for many absentee employees, the requested accommodation is usually more time off. For an employer with a "no-fault" or similar attendance policy, unlimited days off will result in an undue hardship to the operation of the business. Therefore, unlimited time off is not a reasonable accommodation under the ADA. Additional time off from work does not allow an employee to perform his or her job, it simply allows the employee to continue not working, which is not the sort of reasonable accommodation the ADA requires an employer to provide.
 

Practical Considerations

Company Attendance Policies
Many contractors utilize a "no-fault" attendance policy, which typically assesses points for various attendance infractions, such as absenteeism and tardiness, without regard to the reason for the absence. Employees who accumulate a certain numbers of points are disciplined, and a maximum number of points will result in termination of employment. No-fault attendance policies usually include limited exceptions, such as FMLA-protected absences. However, employers often run into issues with no-fault attendance policies given the increasing number of federal, state, and local laws that may supersede a no-fault attendance policy. For example, many state and local paid sick leave laws generally override accrual of attendance points under such a policy. On August 28, 2018, the Wage and Hour Division (WHD) of the U.S. Department of Labor published an opinion letter on whether a no-fault attendance policy violates the FMLA. The WHD concluded that an employer's no- fault policy that "freezes" the number of attendance points during an employee's FMLA leave did not violate the FMLA provided that the policy is applied in a nondiscriminatory manner. The WHD recognized that the FMLA does not entitle an employee on FMLA leave to superior benefits, such as removal of absenteeism points, while on leave. However, if the employer counted equivalent types of unpaid leave as "active service" under the no-fault attendance policy – meaning the employer removed points during the leave based on time passed – then the same benefit must be afforded to the employee on FMLA leave. This opinion letter addressed a continuous FMLA leave scenario only, so the issue of a points-based policy in an intermittent leave or partial return-to-work scenario may be an open question subject to challenge.

Employers that implement a no-fault attendance policy may want to review the specifics of the policy to confirm that the conditions of accumulation and removal of attendance points do not violate any federal, state, or local laws and are in compliance with current implementing regulations.

Other Company Leave of Absence Policies
Companies often maintain other unpaid leave of absence (LOA) policies that are available to employees, subject to eligibility, company approval, and business needs. These policies should be clear regarding eligibility requirements, e.g. employee in good standing, seniority, etc. Some positions may not be amenable to extended leaves of absence, so a returning employee may need to accept another open position. The challenge here is to make sure that the approval or non-approval of these leaves do not result in a disparate impact against any protected group, particularly disabled employees. Additionally, if business needs are the reason for rejection of additional time off, the employer must be prepared to prove the undue hardship analysis.

Following-up and Documenting Absences
Employees seeking a leave under the FMLA must make timely submissions of required medical certifications and follow-up treatment, and employers may want to update company records with these documents in real time. Failure to do so may result in time "given away" because the time off has already been provided and cannot be taken back. It's in employers' interests to classify absences correctly and keep track of when an exhaustion of a leave is set to occur. As the date approaches, employers may want to follow-up with employees to determine a return date with proper documentation from the treating medical providers. If the employee cannot return to work and perform the essential functions of the job because of a disability, a discussion regarding an accommodation for a disability may be necessary.

The Interactive Process
Although the case law is abundantly clear that the disabled employee must request, or at least start the conversation regarding the need for, an accommodation, OFCCP will typically put this burden on the employer. Therefore, employers with an employee who is disabled, has exhausted all options for paid and unpaid leave, and still cannot return to work, may want to initiate a discussion with the employee to determine what, if any, other options are available. In most employment settings, an "open ended" leave or the request not to come into work to perform job duties will not be considered an option for a reasonable accommodation—but this discussion still needs to take place.

Documenting Reasonable Accommodation Discussions
It is helpful to have documentation to support an employer's claim that the interactive process occurred and that accommodations were discussed, offered, and accepted or rejected. If the employee is covered by a collective bargaining agreement, a union representative also should be present. Employers might also want to ensure that all meetings include at least two company representatives to validate the accuracy of the documentation of the discussions.