Special Bulletin

Many readers have heard our counsel through the years that regular and predictable attendance is an essential function of all jobs. Others may implicitly expect faithful attendance from their employees and would be surprised to learn that the point could be in any way debatable.

Attendance is indeed an issue that perpetually plagues employers of all sizes. Absenteeism is costly. According to the Society for Human Resources Management, absenteeism costs employers roughly $600 per employee every year, and this number does not factor in lost productivity, overtime for other employees, or the cost of using temps.

Also frustrating is the nagging feeling that an employee is "playing hooky," not really bedridden with the flu. In fact, a recent study confirmed that the majority of unscheduled absences are not used for personal illness. The study found that the rate of unscheduled absenteeism due to personal illness was only 35 percent in 2005, while the remaining 65 percent of unscheduled absences were caused by family issues, personal needs, "entitlement mentality," and stress/burnout.

Nevertheless, the trajectory of the law does not automatically take these factors into account. New case law exists that, if upheld or otherwise generally adopted, places a requirement on the employer to prove that regular attendance is an essential function of the job. The case is Equal Employment Opportunity Commission v. Circuit City Stores, 2005 WL 1474025 (M.D.N.C. June 21, 2005). The employee in that case was frequently absent due to a serious health condition. The store manager referred to him as "hoppy" and "crip" and made other remarks about the employee's condition. After being terminated, the employee filed a charge with the Equal Employment Opportunity Commission (EEOC) alleging disability-based harassment. The EEOC sued Circuit City on behalf of the employee. Circuit City's motion for a summary dismissal of the case was rejected by the U.S. District Court for the Middle District of North Carolina. The district judge held that the employee, although disabled, was qualified for the position he held. Although conceding that regular attendance is a necessary element of most jobs, the court held that Circuit City's defense was deficient in several respects:

• Circuit City failed to demonstrate that it had a policy regarding absences.
• Circuit City failed to proffer any evidence of a written description of the employee's job describing any required level of attendance.
• Circuit City failed to show that the employee was ever disciplined for attendance problems.

In other words, regular and predictable attendance may not be considered a per se essential function of all jobs. In order reliably to base job action on irregular attendance, there would have to be evidence that the nature of the employee's job required his or her presence during specific hours of the day.

The proactive employer's hands are not tied. The case can be made with evidence of a published company policy emphasizing not only the employer's expectation of regular attendance but also the inconvenience to management and fellow workers alike in events such as unexcused absence and tardiness. If the hours of expected attendance are not included in any job description, then the point can still be made at the time the employee is first hired.

Finally, the policy and the practice must be put into effect by creating a consistent record of disciplining violators of the rule within the company. This sort of performance lapse is ideally addressed with progressive discipline documented at each stage with verified reference to the policy and the hardship created by the employee's failure to adhere to it. This situation is yet another one in which the mantra of "communicate, document, and verify" bears repeating.

The legal implications are important at several points of contact in the workplace. The following is an overview of several laws that are implicated in attendance matters:

Americans with Disabilities Act ( ADA). The ADA covers employers with 15 or more employees, including state and local governments. The ADA protects "qualified individuals with disabilities." A qualified individual with a disability is an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the job. We might think that a court would not question whether attendance is an essential job function, but as in the Circuit City case, some courts already have. This issue will likely remain on the horizon. The EEOC will likely continue to fight this issue because it has taken the published position that "attendance" is not an essential job function. Also, as technology improves and as more workers look for flexible work alternatives, telecommuting will likely gain in popularity. The easier it is for an employee in a given position to work at home, the more likely it is for a court to find that attendance at a particular location is not an essential function of the position. Thus, inclusion of regular attendance language in the written job description, as well as a published company policy on attendance, becomes all the more important.

Unemployment Insurance Benefits. Benefits paid out to claimants are paid by a fund created by a state tax on employers. Subject to certain exceptions, virtually all employers are liable for unemployment tax . Because the tax rates vary depending on the experience of each employer, employers have a financial incentive to challenge claims of former employees through the administrative procedures of the Employment Security Commission (ESC).

An employee is disqualified from receiving benefits if the ESC determines the employee was discharged for "misconduct." Also, if the ESC determines that the employee was discharged for "substantial fault," which does not rise to the level of "misconduct," then the employee receives benefits for a shortened period and the employer is not charged. The North Carolina courts have generally held that not showing up to work and being tardy to work may constitute misconduct or substantial fault. However, this is not always the case. A finding of misconduct or substantial fault may be precluded if the ESC determines that an employee had good reason for failing to show up to work or did not have reasonable control over his or her actions.

How does this happen? If an employee persuades the ESC that the absence or tardiness was legitimate, then the agency might believe it was not the employee's fault, regardless of whether the employer's policy has been violated and regardless of how many negative marks the employee had on his or her attendance record.

The same practices outlined before for establishing that regular and predictable attendance is an essential job function for purposes of the ADA will also help employers prevent a dispute over unemployment benefits. If an employee has violated an attendance policy that he was well aware of and has been given a chance to redeem himself through progressive discipline, then the ESC is more likely to attribute the employee's violation to misconduct or substantial fault.

Family and Medical Leave Act (FMLA). The FMLA covers all employers with 50 or more employees within 75 miles of a given work place, including state and local government. Generally speaking, the FMLA allows a qualifying employee to take up to 12 weeks of leave during any 12 month period for a "serious health condition." A serious health condition is defined as an illness, injury, impairment, or physical or mental condition that involves continuing treatment by a healthcare provider and includes any period of incapacity or treatment for the incapacity. Included in this definition are chronic conditions requiring periodic visits or treatments by a healthcare provider. A chronic serious health condition must continue over an extended period and may cause episodic rather than a continuing period of incapacity.

Intermittent FMLA leave taken in conjunction with a chronic condition is one of the biggest headaches confronting employers subject to this law. The FMLA allows an employee to take 12 weeks of leave intermittently or on a reduced schedule where the employee is incapacitated or unable to perform the essential functions of the position so long as there is a medical need for intermittent leave. Because leave for a chronic condition only requires periodic visits or treatments by a healthcare provider, an employee need not even see a physician when intermittent leave is taken.

How does this work in practice? First, the employee's doctor certifies that the employee has a chronic serious health condition and that intermittent leave is medically necessary. Intermittent leave would allow the employee to take a day or two periodically when needed. Some common chronic health conditions are asthma, diabetes, migraines, depression, and bipolar disorder. Thus, an employee who suffers from a migraine or a bout of depression only needs to notify the employer to use a day of intermittent leave. Again, a visit to the doctor's office would not be required.

Not surprisingly, this use of intermittent FMLA leave presents employers with the same types of problems as unscheduled absenteeism. Employers are often faced with employees who use intermittent FMLA leave as extra "sick days." For example, an employee with a serious health condition may take a day or two off sporadically, without consequence, for up to 60 days in a calendar year. If the employee had not been eligible for FMLA leave and took 60 days off, the employee would likely be disciplined for violation of an attendance policy.

Consequently, avoiding legal pitfalls is trickier when an employee is taking intermittent FMLA leave. An employee who takes FMLA leave cannot be terminated for doing so, even if the amount of intermittent leave taken would violate the employer's attendance policy were it not for FMLA.

An employer who questions a suspicious pattern of intermittent leave can resort to the recertification provisions of the FMLA. The employer should request complete, not just cursory, medical certification from the employee's physician from the very start. Employers should advise the employee at the time of the request that leave may be denied or held up if complete and adequate certification is not provided. The employer may then request recertification as allowed by the regulations and should request an entirely new certification at the start of the new FMLA leave year. Additionally, if an employer receives information casting doubt on the reason for the absence, the employer can request recertification at 30-day intervals.

Despite the challenges presented by the FMLA, there is new case law that may help employers that are burdened with an employee's excessive leave, even if some of the leave is FMLA protected. The case is Salinas v. Exxon Mobil Corp., 2005 WL 2122065 (S.D. Tex. Aug. 31, 2005). Over the course of two and a half years, the employee in this case missed a large number of workdays. Nevertheless, the employee received full pay during that time. Exxon placed the employee on paid disability leave and informed her that it would look for a vacant position that would accommodate her restrictions. The employee filed an EEOC charge six days later. Two months later, Exxon informed her that there were no available positions that would accommodate her restrictions and that she was therefore discharged. The employee thereafter filed a second EEOC charge and subsequently filed suit, alleging that Exxon violated the FMLA and ADA by removing her from her position and subsequently terminating her employment.

The U.S. District Court for the Southern District of Texas concluded that although the employee was protected under the FMLA and had suffered an adverse job action, she was discharged for a legitimate, nondiscriminatory reason, namely, her excessive absenteeism in the past and Exxon's reasonable belief that her absenteeism would continue in the future. The court decided this even though Exxon considered all her absences in deciding to terminate her, including those absences that were protected under the FMLA. The court held that Exxon was within its right to terminate her for taking leave beyond what was afforded by the FMLA. Furthermore, the court held that Exxon could not possibly have determined whether the employee took excessive leave unless it first determined that she exhausted all of her FMLA leave.

This decision reaffirms that an employee who takes excessive leave is not immune from discipline simply because a portion of that leave was protected and also that an employer can look at the aggregate leave taken by an employee in an attempt to parcel out which leave is protected and which is not.

In summary, although intuitively it should go without saying that regular attendance is an essential function of any jobafter all, who hires anyone not to show up?the courts will not allow employers to fall back on a job requirement that is merely notional. Rules of the road have been handed down by the courts that will allow employers to navigate through this hazardous intersection of the law and the workplace.

Ward and Smith, P.A. is the largest law firm based in eastern North Carolina, and serves as counsel for more mid- and large-sized businesses in the region than any other law firm. The firm is composed of more than 65 attorneys who serve clients locally, regionally, nationally, and internationally from offices in Greenville, New Bern, Raleigh, and Wilmington. Honored with the distinction of being rated as one of America's Greatest Places to Work with a Law Degree by Harcourt Brace, Ward and Smith, P.A. is also home to 16 attorneys included in the publication The Best Lawyers in America and nine attorneys selected as "Legal Elite" from a peer-review survey published in Business North Carolina.

For further information regarding the issues described above, please contact one of our section attorneys William Joseph Austin, Jr., Albert R. Bell, Jr., S. McKinley Gray, III, William A. Oden, III, or Jeremy R. Sayre.