07/01/2021
In Evans v. Cooperative Response Center, Inc., employee Tori Evans suffered from reactive arthritis, an autoimmune disease that caused flare-ups. Evans was the sole office assistant, and her duties included answering phones and welcoming visitors, among other responsibilities. The employer, a security monitoring company, approved FMLA leave each month for two half days to attend medical appointments and two full days for flare-ups.
The employer’s attendance policy specifically stated that attendance was an “essential job function” for all employees. Unexcused absences generated points that resulted in progressive discipline up to termination. The company notified Evans that absences in excess of the FMLA-approved amounts would receive points under its attendance policy. The company also had a two-step call-in procedure that required Evans to notify both her supervisor and human resources prior to an absence and that Evans specifically state the absence was for FMLA leave. Evans would be assessed a point if she did not comply with the call-in policy.
Evans subsequently took FMLA-covered leave intermittently. She also, however, received points for non-FMLA absences, including absences taken in excess of the FMLA-approved amounts as well as failing to follow the two-step notification requirement. The company requested that Evans’s doctor recertify the frequency and duration of her condition so that it could determine whether additional leave was needed. The doctor indicated that additional leave was not needed. Evans was warned about her attendance and informed that her absences burdened co-workers and caused delays in business functions. After Evans again missed work for an illness that did not appear to be related to her FMLA condition, she was terminated.
The court upheld dismissal of Evans’s ADA claims in part because “regular and reliable attendance is a necessary element of most jobs,” and Evans’s job fit into that category for several reasons. The company had an attendance policy that clearly designated attendance as an essential job function. Evans’s duties included tasks that required her to be in the office (i.e., answering phones, greeting visitors). Evans was also warned that her absences burdened co-workers and impaired service. Of particular note, the court concluded that a request for FMLA leave beyond the two full and two half days per month was not a reasonable accommodation because such an accommodation - more leave - would not enable her to perform the essential functions of her job, which included regular and reliable attendance. Furthermore, there was no evidence that Evans ever requested additional leave.
The court also did not side with Evans on her FMLA claims. First, the court upheld, as it has before, the two-step call-in notification procedure for FMLA leave. The court also concluded that the employer was not required to guess whether Evans needed FMLA, but instead, Evans was required to affirmatively invoke FMLA. The company was also not required to allow FMLA for absences in excess of her FMLA certification, nor was it required to request recertification to add absences to her FMLA certification.
This case offers various key ADA and FMLA compliance tips for employers. For instance, courts may conclude that regular and reliable job attendance is an essential job function, especially when employers’ job descriptions and policies reflect such. Also, a request for additional FMLA leave is not a reasonable ADA accommodation when an essential function of a position is regular and reliable attendance. Finally, two-step call-in procedures (notifying both the supervisor and HR) are appropriate for intermittent FMLA leave notification. In this case, attendance points were assessed for FMLA leave that exceeded the certified amount, after the employer reached out to the physician for recertification.
Eighth Circuit Sides With Employer's Attendance Requirements In FMLA And ADA Case
An employer recently scored a win in the United States Court of Appeals for the Eighth Circuit when a unanimous three-judge panel concluded that the company did not violate the Americans with Disabilities Act (“ADA”) or the Family and Medical Leave Act (“FMLA”) in terminating an employee under its attendance policy.In Evans v. Cooperative Response Center, Inc., employee Tori Evans suffered from reactive arthritis, an autoimmune disease that caused flare-ups. Evans was the sole office assistant, and her duties included answering phones and welcoming visitors, among other responsibilities. The employer, a security monitoring company, approved FMLA leave each month for two half days to attend medical appointments and two full days for flare-ups.
The employer’s attendance policy specifically stated that attendance was an “essential job function” for all employees. Unexcused absences generated points that resulted in progressive discipline up to termination. The company notified Evans that absences in excess of the FMLA-approved amounts would receive points under its attendance policy. The company also had a two-step call-in procedure that required Evans to notify both her supervisor and human resources prior to an absence and that Evans specifically state the absence was for FMLA leave. Evans would be assessed a point if she did not comply with the call-in policy.
Evans subsequently took FMLA-covered leave intermittently. She also, however, received points for non-FMLA absences, including absences taken in excess of the FMLA-approved amounts as well as failing to follow the two-step notification requirement. The company requested that Evans’s doctor recertify the frequency and duration of her condition so that it could determine whether additional leave was needed. The doctor indicated that additional leave was not needed. Evans was warned about her attendance and informed that her absences burdened co-workers and caused delays in business functions. After Evans again missed work for an illness that did not appear to be related to her FMLA condition, she was terminated.
The court upheld dismissal of Evans’s ADA claims in part because “regular and reliable attendance is a necessary element of most jobs,” and Evans’s job fit into that category for several reasons. The company had an attendance policy that clearly designated attendance as an essential job function. Evans’s duties included tasks that required her to be in the office (i.e., answering phones, greeting visitors). Evans was also warned that her absences burdened co-workers and impaired service. Of particular note, the court concluded that a request for FMLA leave beyond the two full and two half days per month was not a reasonable accommodation because such an accommodation - more leave - would not enable her to perform the essential functions of her job, which included regular and reliable attendance. Furthermore, there was no evidence that Evans ever requested additional leave.
The court also did not side with Evans on her FMLA claims. First, the court upheld, as it has before, the two-step call-in notification procedure for FMLA leave. The court also concluded that the employer was not required to guess whether Evans needed FMLA, but instead, Evans was required to affirmatively invoke FMLA. The company was also not required to allow FMLA for absences in excess of her FMLA certification, nor was it required to request recertification to add absences to her FMLA certification.
This case offers various key ADA and FMLA compliance tips for employers. For instance, courts may conclude that regular and reliable job attendance is an essential job function, especially when employers’ job descriptions and policies reflect such. Also, a request for additional FMLA leave is not a reasonable ADA accommodation when an essential function of a position is regular and reliable attendance. Finally, two-step call-in procedures (notifying both the supervisor and HR) are appropriate for intermittent FMLA leave notification. In this case, attendance points were assessed for FMLA leave that exceeded the certified amount, after the employer reached out to the physician for recertification.
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