May an Employer Terminate a Disabled Employee for Excessive Absenteeism?

Many employers are apprehensive about terminating the employment of disabled employees, even when the employee is excessively absent. Employers understand that under the federal Americans With Disabilities Act, and kindred state laws, they must reasonably accommodate disabled employees. What happens when, notwithstanding the employer’s best efforts to accommodate the employee, she frequently fails to show up for work? How can the employer minimize its lawsuit risk while insisting on good attendance? The First Circuit Appeals Court recently addressed this conundrum and provided some guideposts for employers.

JetBlue employed an inflight crew member, Lauren Miceli, based in Boston. Miceli was diagnosed with multiple medical conditions. JetBlue has a “dependability” policy under which absent employees accrue points for unexcused absences. The accrual of points triggers a progressive discipline process which may culminate in termination of employment.

Miceli exceeded her allowable absences and JetBlue instituted progressive discipline under its policy. Miceli claimed the absences related to her medical condition and requested that each absence be expanded from one to five days per occurrence under the FMLA. JetBlue agreed. Nevertheless, Miceli continued to accrue unexcused absences and was given another warning. JetBlue refused to re-classify her additional absences as FMLA occurrences. She ultimately was hospitalized and placed on FMLA leave but not before accruing yet another unexcused absence. Miceli then filed a complaint with the Massachusetts Commission Against Discrimination. After completion of her leave of absence, JetBlue suspended and then terminated Miceli. She sued. The trial court granted JetBlue’s summary judgment motion and dismissed the case. An appeal ensued.

The First Circuit held that JetBlue’s “clearly delineated and neutrally applied” attendance policy is a legitimate, non-discriminatory reason for adverse employment action distinct from disability. Next, the appeals court concluded that Miceli had failed to use specific procedures to justify her absences under the guise of reasonable accommodation. Miceli was aware of the procedures but did not clearly link her disability to the requested accommodation. The Court concluded that such requests must be reasonably specific and form an “unmistakable request for accommodation.”

Here are the key takeaways for employers:

1. Establish a specific attendance policy and uniformly apply it to all employees.
2. Establish and uniformly apply a clear process for employees to communicate accommodation requests. Do not guess whether your employees need an accommodation.
3. Make sure your employees have received written notice of your policies and procedures.
4. Do not make exceptions for some employees. In the HR realm, no good deed goes unpunished.
5. When in doubt, seek advice from your employment counsel.