Checklist: Determining When Absence Policies Violate the ADA 

Attorney William Curphey offers the following guidelines to help determine if discharging an employee with an absenteeism problem is allowable under the Americans with Disabilities Act (ADA):

 ____ 1. Determine the employee's status. Is the employee a qualified individual with a disability protected by the ADA? If the employee cannot perform the essential functions of the job with or without reasonable accommodation, then the employee is not considered qualified. Discipline or even termination for excessive absenteeism would not be illegal under the ADA.

If the employee can perform the essential functions of the job, the employee is considered qualified. An employer may be able to discipline or terminate a qualified individual with a disability for absenteeism, but the following determinations must first be made.

____ 2. If the employee has a disability, determine if regular attendance is an essential job function. If regular attendance is essential to performing the job, the poor attendance may be grounds for terminating a qualified individual with a disability if reasonable accommodation has been attempted. Jobs where attendance is essential include most nonexempt jobs and many exempt ones as well.

____ 3. Determine the cause of the absenteeism. If the absences are due to a disability, attempts at reasonable accommodation are warranted. If the absences are due to a medical condition, employers should be especially cautious. A medical problem may be a disability in disguise, which could require reasonable accommodation.

____ 4. If the employee has a disability, confirm that all possible steps have been taken to reasonably accommodate the employee and that no further reasonable accommodation is possible. Be flexible about accommodations. There are no hard and fast rules for what courts may consider reasonable.

____ 5. Determine that the employee knew that excessive absenteeism would place the person's position in jeopardy. An acknowledgment signed by the employee should be in the employee's personnel file. 

Reprinted with permission. © CCH