The U.S. Court of Appeals for the First Circuit recently ruled that an employee who frequently missed work because of chronic fatigue syndrome (CFS) could present Americans with Disabilities Act (ADA) claims to a jury. The court found it significant that the employee had been regularly accommodated in the past through a flexible schedule that allowed her to meet her job’s attendance requirement.
Facts of the case
The employee worked in human resources for the Puerto Rico Ports Authority and suffered from CFS with symptoms that included insomnia, joint and muscle pain, weakness, and headaches.
To accommodate her insomnia, her doctor recommended a later start time. For two years a supervisor allowed her to begin work at 9:00 a.m. instead of the employer’s standard 7:30 a.m., provided she completed 37.5 hours per week or used leave to cover shortfalls.
A later supervisor questioned the flexible schedule, monitored her arrival and departure times, and reprimanded her for late arrivals. That supervisor sometimes required doctors’ notes for one- or two-day absences even though the employer’s policy required notes only after three days. The employee says the new supervisor’s treatment worsened her symptoms and led to two extended medical leaves.
The court’s ruling
The trial court had found the employee unqualified under the ADA because regular attendance was an essential job function and the employee had long absences. On appeal, the First Circuit vacated that decision and explained that evidence about the prior successful accommodation could allow a jury to find she was a qualified individual who could meet attendance requirements with a flexible start time.
The court also said a jury could view the employee’s testimony about the new supervisor’s conduct as evidence of disability discrimination or retaliation for requesting accommodations. The employee further presented evidence that raised questions about whether her termination was retaliatory.
Practical impact
The ADA Amendments make it easier for employees to show a health condition qualifies as a disability, and courts will consider whether an earlier accommodation allowed an employee to perform essential job functions.
Although a new supervisor may enforce attendance standards, rejecting a prior accommodation that enabled an employee to meet essential functions can expose an employer to ADA liability.
For employers and property managers interested in related risk-management topics, see Vacant Dwellings Under Repair Insurance and Vacant Structure Insurance.
Article courtesy of Worklaw® Network firm Shawe Rosenthal.
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Frequently Asked Questions
When can an employer require regular attendance as an essential job function?
An employer can identify attendance as essential when consistent presence is necessary for job performance, but courts will consider whether a reasonable accommodation could allow the employee to meet that function.
Does prior accommodation affect ADA claims?
Yes—evidence that an employee performed successfully under a prior accommodation can support a claim that the accommodation allowed them to meet essential job functions.
Can a supervisor’s stricter enforcement be actionable?
Potentially. If a new supervisor rejects a previously effective accommodation or treats the employee differently because of a disability or accommodation request, that conduct can be relevant to discrimination or retaliation claims.
What should an employee do when an accommodation is denied?
Document communications and requests, engage in the employer’s interactive process, and consider consulting human resources or an employment law resource for guidance.