Court Rejects “Increased Sick Days” as a “Reasonable Accommodation”

In Francis v. Wyckoff Heights Med. Ctr., No. 13-cv-2813, 2016 WL 1273235 (E.D.N.Y. Mar. 30, 2016), the court cited and applied the principles that “regular attendance at work is an essential requirement of virtually all employment” and “[t]he [Americans with Disabilities Act] does not require employers to tolerate chronic absenteeism even when attendance problems are caused by an employee’s disability.”

Although the court found that plaintiff suffered from a “disability” (lymphedema), it dismissed her disability discrimination and failure-to-accommodate claims.

“The burden to demonstrate a reasonable accommodation is not a heavy one, requiring only that the plaintiff suggest the existence of a plausible accommodation, the costs of which, facially, do not clearly exceed its benefits. Under the ADA, reasonable accommodations may include, inter alia, job restructuring, part-time or modified work schedules, [or] acquisition or modification of equipment or devices. However, it is beyond dispute that [a] reasonable accommodation can never involve the elimination of an essential function of a job.”

Applying the law, the court held:

Plaintiff proposes that Wyckoff should have allowed her to take increased sick days in excess of what was permissible under Hospital policy. Plaintiff contends that Wyckoff actually accommodated her disability in this manner for several years, tolerating her need for frequent unscheduled absences until Ms. O’Hagan became Director and allegedly refused to continue doing so. However, under the ADA, a reasonable accommodation is one that enables a disabled employee to perform the essential functions of a job. … Plaintiff’s request for as many sick days as needed would excuse her from the essential function of regular and predictable attendance. The law in [the Second] Circuit categorically holds that such an accommodation, which would eliminate an essential job function, is not reasonable.

Notably, Plaintiff does not suggest that the additional sick days she requests would be capped at any particular number, or conditioned on giving advance notice of an absence to Wyckoff. The fact that Plaintiff declines to make such assurances is understandable, as her claimed disability is chronic in nature and she presumably has no way of knowing when or how often it will render her incapable of working. However, that fact underscores the unreasonableness of Plaintiff’s proposed accommodation, which essentially would let Plaintiff set her own work schedule according to personal needs, rather than those of her employer. Any such accommodation is not reasonable as a matter of law.

The fact that plaintiff “was a capable worker by most accounts, aside from her poor attendance and punctuality” did not alter this result, since “[g]iven her record of absenteeism, [she] cannot establish that she was otherwise qualified through evidence that she was a capable [employee] on those occasions when she did show up for work.”

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