The Connecticut Appellate Court ruled this week that an employee’s request for extended intermittent leave is not a “reasonable” accommodation under the state’s anti-discrimination laws. You can download Barbabosa v. Board of Education here.
The decision provides some much needed guidance to an area that has been increasingly litigated — namely whether a medical leave, above and beyond FMLA leave, is required as a reasonable accommodation.
The background on the case is fairly straightforward and might be familiar to some who have dealt with employees.
- Plaintiff was a full-time one-on-one, and then classroom paraprofessional for a school system.
- Throughout her employment, she had “long-standing and well documented issues with absenteeism and tardiness.”
- By November 2012, a meeting was held to discuss her continued absences and the “negative impact” her attendance was having on students. She was warned that further violations or unapproved absences could result in suspension.
- By the end of 2013, she was given another verbal warning and another meeting was held about her absences.
- In early January 2014, she filed a request for intermittent leave for the entire 2014 calendar year because of a serious health condition. The request was denied because she had not met the hours requirement under the FMLA.
- Eventually she was suspended for 30 days without pay in 2014 for her absences but not fired.
- The Plaintiff filed a claim under state law alleging that she was discriminated against and suspended because of her disability and that her employer had failed to provide her with a reasonable accommodation. The lower court granted summary judgment to the employer.
- On appeal, the Plaintiff argued that her generally positive performance reviews created an issue of fact as to whether she was “qualified” for her position. She also argued that her request for intermittent leave constituted a reasonable accommodation that did not eliminate the essential function of her job.
- The Appellate Court rejected both arguments.
The court noted that numerous federal and state courts “have recognized that attendance at work is a necessary job function.” The court also found that there is no dispute that “Plaintiff failed to perform this essential function in the years leading up to her suspension.”
The fact that she received generally positive performance reviews was of no concern to the court because the evaluations make repeated references to her attendance being an issue. Of the 13 reviews submitted by both parties, 10 contained a concern about her attendance or punctuality.
As to the request for intermittent leave, the court concluded that because attendance is essential, it also shows that “plaintiff’s proposal for intermittent extended leave was not a reasonable accommodation, as a matter of law, because that proposal would eliminate the very essential job function it purports to address.”
The court continued: “Put another way, we fail to see how it is possible to perform the essential function of attending work through an accommodation that provides for even more absences from work.”
The court then inserted language that we suspect may be used in future cases like this one:
In fact, the plaintiff’s request to permit her to take intermittent leave, above and beyond that for which she was eligible or already approved, would only exacerbate her existing attendance issues and would further undermine her ability to perform an essential function of her employment, namely, maintaining regular attendance. It is, thus, not a reasonable accommodation.
While this ruling is significant to employers, the question of the “reasonableness” of an accommodation is very fact-specific and dependent on the circumstances. In this case, the employee’s history of poor attendance was obviously a factor in the court’s decision. However, employers must be cautious in evaluating any request for an accommodation carefully before denying it.