Few problems vex employers as much as figuring out the interplay of leaves of absence required by the Family Medical Leave Act (FMLA) and the Americans with Disabilities Act (ADA), particularly when they involve intermittent leave, irregular and unreliable attendance.  A recent case from the federal appeals court for the Eighth Circuit addresses these issues in a number of favorable rulings for employers, in connection with the termination of an employee for violating a "no-fault" attendance policy.  Evans v. Cooperative Response Center, Inc., No. 19-2483 (5/4/21).  In this particular case, a plaintiff with reactive arthritis contended that her employer violated the ADA by discriminating and retaliating against her because she is disabled and by failing to accommodate her disability, and that the employer violated the FMLA by denying leave to which she was entitled and by discriminating against her for exercising FMLA rights.  

Without going into the detailed facts and arguments, the court essentially sets forth the following principles in ruling for the employer on all issues.

1. Regular and reliable attendance is an essential job function and intermittent leave does not excuse an employee from essential functions.
2. If an accommodation would leave the employee unable to perform an essential job function, including regular attendance, the accommodation fails at least for ADA purposes.
3. It is the employee's responsibility to formally request an ADA accommodation.
   
4. FMLA permits the employer to require adequate notice of FMLA leave on each occasion, and also to meet the employer's internal and customary reporting procedures, even if the employee has to make separate reports to a supervisor, Human Resources, and/or a third-party administrator.  
5. The plaintiff lawfully got attendance points where there was no record of evidence she ever mentioned her illness was related to her certified FMLA leave and the symptoms she mentioned were not listed as symptoms in her FMLA certification forms.  
6. The FMLA requires the plaintiff "must specifically reference either the qualifying reason for leave or the need for FMLA leave."
7. The employee's request for FMLA leave was beyond the days certified in her FMLA certification and yet she never attempted to increase the amount of intermittent FMLA leave requested, and re-certification by employers are discretionary, not required.
8. Where absences are not attributable to a serious health condition, the FMLA is not implicated, and the employer's normal disciplinary policies apply. 
9. Plaintiff's past successful use of FMLA leave at her employer is strong evidence of a lack of discrimination or retaliation by the employer in the case of subsequent absences. 
10. The employer's discretion to terminate an employee based on the mistaken belief that an absence was not FMLA eligible, standing alone, does not establish a prima facie case of discrimination.

This is part of our September 2021 Newsletter.

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