by Marylou V. Fabbo Skoler, Abbott & Presser, P.C
Employers who hire full-time employees want those employees to in fact work full-time and be at work when expected. Employees who do not report to work on a regular, predictable basis pose production issues for the employer as well as morale issues among the employees’ co-workers who may feel it’s unfair for them to have to “pick up the slack” for the absent employee. Still, disabled employees may request and be entitled to a modified schedule or relief from attendance policies due to stamina issues, flare-ups, or because of the effects of their treatments or medications. Two courts have recently provided some insight as to when an employer may have to permit an employee to work something other than a regular full-time schedule. Coincidentally, both cases involved a teacher with fibromyalgia.
Massachusetts School Teacher May Be Entitled to Regular Part-Time Position
Irene Incutto was an elementary teacher in the Newton Public School system (“NPS”). Incutto alleged that NPS violated the Americans with Disabilities Act (“ADA”) and Massachusetts law by not accommodating her fibromyalgia when it denied her repeated requests to work a permanent part-time schedule because her disability prevented her from working full-time. Under state and federal law, employers have the duty to provide disabled employees with reasonable accommodations that allow them to perform their essential job functions. In the context of relaxing attendance guidelines to reasonably accommodate a disability, the courts in this jurisdiction have conducted a two-factor inquiry: Is attendance an essential function of the position? If so, is a modified schedule a reasonable accommodation that would allow the employee to perform her essential job functions? NPS unsuccessfully argued that full-time work was an essential function of the job. Most detrimental to its argument was the fact that numerous teachers job-shared and that Incutto herself had job-shared in the past. The court’s decision is here.
We want to point out that this case was decided at the summary judgment stage. That means that the school believed that there were no material facts in dispute; therefore, it filed a motion for summary judgment asking the judge to apply the law to those undisputed facts and issue a ruling in its favor. In this case, the court concluded that there were enough facts in dispute to allow the case to go to trial and be decided by a jury after hearing all the evidence.
Significantly, the court noted that the employer did not come forward with evidence that permitting Incutto to have a part-time position would pose an undue hardship. An “undue hardship” is an action that requires significant difficulty or expense when considered in light of a number of factors. These factors include the nature and cost of the accommodation in relation to the size, resources, nature, and structure of the employer’s operation. An employer has the burden of proving undue hardship, and it’s possible that at trial the employer could succeed at trial by introducing evidence of undue hardship such as “limits on the number of job-shares for administrative or budgetary reasons.”
Connecticut School Teacher Not Entitled to Intermittent Absences
Unlike NPS, the Board of Education of the Town of Manchester, Connecticut (the “Town”) successfully argued at the summary judgment stage that paraprofessional Dianna Barbabosa’s attendance was an essential job function. In support of its argument, the employer provided an “abundance of evidence that points to attendance being an important essential function of a paraprofessional,” noting that the applicable Collective Bargaining Agreement (“CBA”) provided a lot of language that supported such a conclusion, including a statement of the work year and holidays, work hours, and sick leave for full-time paraprofessionals and how to handle issues that could arise due to absenteeism, among others. The court determined that Barbabosa’s request for intermittent, prospective absences was not a reasonable accommodation because it would eliminate the essential function of regular attendance. The Connecticut court concluded that the Town did not have to allow the school teacher Dianna Barbabosa to be excused from a policy prohibiting excessive absenteeism, and it granted summary judgment in favor of the Town. Absent a successful appeal by Barbabosa, this case won’t get to a trial. You can read the decision here.
So When Does Attendance Matter?
Reasonable accommodations can take many forms. Time away from work may be a reasonable accommodation even though time off means the employee is not performing essential – or any—job functions. In its Enforcement Guidance: Reasonable Accommodation and Undue Hardship under the ADA, the EEOC has made it clear that a modified or part-time schedule may be a reasonable accommodation and has provided some examples of when such accommodation should be made. In addition to those examples, courts in just about every jurisdiction have addressed this issue in one or more cases. The bottom line is that the outcome is completely fact-dependent. An employer faced with a request for time off, a reduced schedule, or permission to take intermittent time off without advance notice, needs to give careful thought to its response. A review of case law for facts similar to those involved in your employee’s request is critical to making a legally-sound decision and reducing your risk of liability for violating state or federal disability laws.