Time, Attendance, and Leave
Guest Presenter - Jeff Nowak, J.D., Co-Chair
Franczek Radelet Labor and Employment
Practice Group and Author, FMLA Insights Blog
Tracie DeFreitas, M.S.
JAN Lead Consultant, ADA Specialist
JAN is a service of the U.S. Department of Labor’s
Office of Disability Employment Policy.
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Agenda
 Leave as an
Accommodation
under the ADA
 Time and
Attendance Issues
 Designating FMLA
Leave
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Leave & the ADA
How do you explain
that leave is
considered a
reasonable
accommodation when
accommodations are
supposed to enable
employees to perform
their jobs?
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Why is leave needed?
 To attend medical
appointments related to
an episodic or chronic
medical impairment
 To obtain medical
treatment
 To recuperate from an
illness or surgery, or
exacerbation of
symptoms associated
with an episodic or
chronic medical
impairment
Other reasons…
 To obtain repairs on a
wheelchair, accessible
van, or prosthetic device
 To avoid temporary
adverse conditions in the
work environment
 To train a service animal
 To receive training in the
use of Braille or to learn
sign language
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When is leave needed?
 When there is no other
effective accommodation
 When a qualified
employee is not Family
Medical Leave Act
(FMLA) eligible but has a
qualifying disability under
the ADA
 When a qualified
employee has exhausted
paid vacation and sick
leave and requires
additional intermittent
time off because of a
qualifying medical
impairment
 When a qualified
employee is FMLA
eligible but requires
additional time off –
beyond twelve-weeks
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How is leave provided?
 Accrued, paid vacation or
sick leave under the ADA
 Unpaid consecutive leave
under the ADA and/or
FMLA
 Intermittent leave under
the ADA and/or FMLA
 Leave on a reduced work
schedule under the ADA
and/or FMLA
 Short or Long-Term
Disability (STD/LTD),
Workers’ Compensation,
or leave under an
employer’s own medical
leave of absence policy
 State family medical
leave laws (e.g.,
California Family Rights
Act), including state
Pregnancy Disability
Leave (PDL)
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“No-fault” Leave Policies
Sew What, a textiles
manufacturer,
automatically terminates
any employee who needs
a leave of absence
beyond three months.
Can an employer
automatically apply its
“no-fault” leave policy
to all employees?
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“No-fault” Leave Policies
 Not according to
EEOC, if it is possible
to grant extended time
under ADA
 May be required to
modify the policy
 Modifying workplace
policies is a form of
reasonable
accommodation
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Duration of ADA Leave
What duration of leave is required
under the ADA?
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Duration of ADA Leave
 No specified duration
 Employer's discretion
to determine how much
leave is reasonable
 Case-by-case
assessment
 Document how leave of
absence impacts
business operations
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ADA Leave Extension
Emma is receiving
treatment for cancer and
is about to exhaust her
FMLA leave. She will
need approximately four
more weeks of leave,
beyond FMLA, for
treatment and recovery.
Is an employer required
to grant an ADA leave
extension after FMLA
has expired?
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ADA Leave Extension
 Extended leave may be
required under ADA
 Engage in the
interactive process
 May request medical
documentation to
substantiate the
existence of an ADA
qualifying disability
 Document impact of
leave on business
operations
 Employer determines
reasonableness of
duration
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Undue Hardship
When does providing leave become an undue
hardship?
 Impact of the accommodation on business operations
Factors (EEOC, 2008):
 Inability to ensure a sufficient number of employees to
accomplish the work required
 Failure to meet work goals or to serve customers/clients
adequately
 Need to shift work to other employees, thus preventing them
from doing their own work or imposing significant additional
burdens on them
 Incurring significant additional costs when other employees work
overtime or when temporary workers must be hired
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Intermittent Leave
Jackson has a
gastrointestinal disorder
that flares-up
occasionally. During flareups, he misses work
unexpectedly. He has
asked his employer to
accommodate him by
modifying the attendance
policy to excuse these
intermittent, unplanned,
absences.
Can leave be taken
intermittently or must it
be consecutive under
the ADA?
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Intermittent Leave
 Leave can be
intermittent
 Modify attendance
policy
 Allow the use of
unscheduled, accrued
paid leave or unpaid
leave, as-needed, due
to a qualifying medical
impairment
 FMLA may apply
 Seek clarification from
the medical provider
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Modified Attendance Policies
Should an
attendance policy
be modified when
leave is provided
as a reasonable
accommodation?
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Attendance Issues
Sophia has OCD and
finds it almost impossible
to arrive at work on-time
most days because of her
compulsions. She also
has a tendency to return
late from her lunch break.
Sophia thinks she should
be excused from the
attendance policy
because her disability
prevents her from being
on-time.
Does an employer have
to exempt an employee
with a disability from
time and attendance
requirements?
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Attendance Issues
"…employers need not completely exempt an employee
from time and attendance requirements, grant openended schedules (e.g., the ability to arrive or leave
whenever the employee's disability necessitates), or
accept irregular, unreliable attendance. Employers
generally do not have to accommodate repeated
instances of tardiness or absenteeism that occur with
some frequency, over an extended period of time and
often without advance notice.” (EEOC, 2008)
What does this mean for Sophia?
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Job Retention
DeShawn had a heart
attack and subsequent
bypass surgery. He was
not eligible for FMLA
leave, but was granted
leave under the ADA to
recover from the surgery.
He was told that his
position would be filled if
he could not return after
twelve weeks.
Is an employer required
to hold an employee's
position during an ADA
leave of absence?
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Job Retention
 Yes…otherwise, the
accommodation of
leave is not effective
 Undue hardship?
Consider reassignment
to an equivalent,
vacant position for
duration of leave period
 Return to same or
equivalent position
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More on Attendance
FMLA Issues
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Call-In Policies
If an employee
does not follow
the employer’s
call-in policy to
report an
absence, does the
employer have to
provide FMLA
leave?
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Just “Taking an FMLA Day”
John
 Chronic Musculoskeletal condition – unable to work
when condition “flares up”
 John’s Pattern:
– Calls into boss’ voicemail
– On some occasions, reports chronic condition; on other
occasions, reports that he’s “not feeling well again” or simply
“taking an FMLA day”
– He calls 15-30 minutes before reporting time; policy calls for
employee to report absence at least one hour before start of
reporting time
 What do you do?
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Rule No. 1: Communicate
 “The Employer may find it necessary to inquire further
to determine if the leave is because of a serious
health condition . . .” 29 C.F.R. 825.302(c)
 Fairly broad right to talk directly to employee
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Communicate
 Employer has right to know:
 What is the reason for the absence?
 What essential functions of the job can they not
perform?
 Will they see a doctor for the injury/illness?
 Have they previously taken leave for this condition?
If so, when?
 When did they first learn he/she would need to be
absent?
 When do they expect to return to work?
 An “FMLA Day” is not good enough
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Rule No. 2:
Enforce Your Call-In Policy!
 Employee must comply with employer’s usual and
customary notice and procedural requirements for
requesting leave, absent unusual circumstances
 Foreseeable (30 days or more in advance or as soon as
practicable)
 Unforeseeable (as soon as practicable)
 If employee does not follow, FMLA may be delayed or
denied
 Importance of call-in policy and following employer’s
procedural requirements
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Enforcing Call-In Policy
 Start with basic assumption: Employee will follow
call-in policy
 If employee does not follow the policy, what is the
reason?
 Must be an unusual circumstance
 Why are you calling in at __________?
 Why could you not follow our policy requiring that you
provide notice as soon as possible?
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Call-In Policies
What if John
doesn’t want to
take FMLA leave
for his condition?
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If Employee Declines FMLA Leave…
Answer:
 Employees do not have the option of taking (or not
taking) FMLA if absences qualify:
 We MUST designate an employee’s leave as leave
under the FMLA if the absences qualify
 FMLA runs concurrently with all eligible paid leave
 FMLA is job-protected leave: it is to the employee’s
benefit to designate
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Call-In Policies
How does
an employer
handle a pattern
of absences?
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Pattern of Absences
 Fred is one of your
project managers
 Suffers from irritable
bowel syndrome
 Certification indicates
2 days/mo; 1 day ea.
 Can we seek
recertification? If so,
why?
 What does
recertification look like?
 Past three months:
3x/2x/3x
 Almost all on M or F
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Recertification
General Rule:
 Every 30 days and with an absence
 If duration specified is longer than 30 days, cannot
seek recertification until that period is exhausted
 Exception: Employer can seek recertification every
6 months, regardless of duration
 Others:




Employee requests an extension
Circumstances have changed significantly
Receive information that casts doubt on the validity
Duration/period has expired and absence occurs
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Recertification
 Do we have a significant change in frequency? 29
CFR § 825.308(c)(2)
 Pattern?
 “. . . employer may provide the health care provider with
record of the employee’s absence pattern and ask health
care provider if the serious health condition and need for
leave is consistent with such a pattern”
 Use correspondence to your advantage
 Letter to HCP explaining background: fact pattern,
express concern
 Ask HCP why need for leave occurs on Fri./Mon.
 Use new certification form for HCP to complete
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Resources
 EEOC enforcement guidance documents:
 Reasonable Accommodation and Undue Hardship at
www.eeoc.gov/policy/docs/accommodation.html
 Applying Performance and Conduct Standards at
www.eeoc.gov/facts/performance-conduct.html
 FMLA Insights - Guidance & Solutions for Employers
at www.fmlainsights.com
 JAN’s Leave as an Accommodation at
http://askjan.org/topics/leave.html
 AskJAN.org – See the ADA Library, Publications &
Resources, A-Z by Topic, JAN E-News
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Questions?
JAN
(800) 526-7234 (V)
(877) 781-9403 (TTY)
AskJAN.org
jan@askjan.org
(304) 216-8189 via Text
Special thanks to
Jeff Nowak
jsn@franczek.com
(312) 786-6164
@jeffreysnowak
janconsultants via
Skype
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