“This case illustrates why the Americans with Disabilities Act (ADA) exists.”


Imagine being an employer-defendant and reading that sentence as the lede in a court’s summary judgment opinion.


But that’s precisely what an Indiana federal judge wrote about a defendant who fired an employee after it appeared to the company that the worker had amassed too many absences related to his hereditary, chronic condition that causes kidney stones to develop.

The company apparently followed its employee handbook, which included an attendance policy. Per the policy, any unexcused absence, tardy, or leave early accrued a point, and the company would terminate any employee accruing seven attendance points in a year.

By all accounts, the employee was a good worker. He had several absences from work, only one unrelated to his kidney issues. I’ll tell you about two that did.

On one occasion, the employee collapsed in excruciating pain in a restroom. A manager called an ambulance and rode with the employee to the hospital. As a result, the employee missed work, and the company assessed him a sixth attendance point. Upon returning to work, the manager warned him through an employee warning notice that a seventh attendance point would lead to termination.

Following this health scare, the employee’s doctor scheduled him for surgery. The employee informed HR he would need a day off, which the company approved. He missed work, but the company did not give him a point, which is good.

However, when the employee returned to work, he informed the company that he needed another surgery. The day before the surgery, the same manager told the employee that he would be terminated if he missed work and could reapply after 60 days per company policy.

The employee eventually underwent surgery. That same day, his mom drove him to work to get his paycheck. At the corporate office, he learned he had been terminated for accruing his seventh attendance point.

Here, we have a clear case of a qualified individual with a known disability. And although an employer has a statutory duty to reasonably accommodate disabled employees who need help to do their jobs, the defendant most certainly did not.

It argued that the employee’s final absence was a request for indefinite leave. But the evidence showed otherwise. Indeed, he had an established history of promptly returning to work. The court further noted that this was not a situation in which the employee concealed a return date or refused to give one when asked. Instead, the company never asked for one, essentially choosing to remain in the dark. And if the company could wait sixty days and rehire the plaintiff without issue, why terminate him?

Termination is an adverse employment action, not a reasonable accommodation.

The ADA supersedes an attendance policy if suspending it would permit an employee to do their job without any undue burden.

“Doing What’s Right – Not Just What’s Legal”
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