The Americans with Disabilities Act (ADA) & absenteeism
For decades, employers enjoyed very wide latitude in disciplining and firing employees for attendance problems, even if the absenteeism was the result of illness or injury. The latitude has been significantly altered since passage of the Americans with Disabilities Act (ADA). And don’t forget — the ADA applies to nonprofits, too!
The ADA protects only “qualified individuals with a disability.” Disabilities can mean either physical or mental impairments. A qualified individual must be able to perform essential functions of the job, with or without reasonable accommodation.
TENSION BETWEEN ADA AND ABSENTEEISM
It can be difficult when an employee is absent for a health reason, and co-workers must take up the slack, or the work simply goes undone. The employer risks violating the ADA if the company terminates or disciplines such an employee without first considering whether the employee is a “qualified individual with a disability.” If the answer is yes, the employer must consider whether it could accommodate the employee.
To control attendance problems without violating the ADA, you should:
- evaluate each situation (that is, whether the employee is qualified, disabled, and whether you can provide a reasonable accommodation) on a case-by-case basis while acting as consistently as possible with past practice and in accordance with your attendance policy;
- have a written attendance policy that balances the necessity of good attendance, but also provides you with flexibility that you might need to accommodate a qualified individual with a disability;
- maintain accurate records of all absences, including a separate and confidential file for any medical certifications or medical information relating to an employee’s absences; and
- call your attorney when you have questions about your duties under the ADA. “An ounce of prevention is worth a pound of cure.”
Again, please know the ADA applies to nonprofits, too. The ADA can be a complex law, so follow the practice pointers above and reach out to counsel when needed.