March 12, 2021

Precedent, Past Practice, and Exceptions to Your Rules

This is another kitchen sink case. An employee sued his former employer under the ADA, FMLA, state law and other claims asserting discrimination, failure to accommodate, retaliation, interference and denial of leave.

The employee had a brain tumor and epilepsy. The employer had a policy prohibiting “excessive” absenteeism.  Upon his initial diagnoses, the employer provided the employee with a medical leave of absence and exercised leniency by not issuing corrective action for other, related absences. The employer did advise him that his attendance would be monitored and he could be subject to corrective action if his attendance did not improve.

When his attendance did not improve over the next three to five months, he was fired.  The 5th Circuit (covering LA, TX & MS) agreed with the lower court and found in favor of the employer on every claim!  Why?

The court found the former employee was not a qualified individual under the ADA because he could not maintain “regular worksite attendance” required by the job. The former employee countered that attendance must not be an essential function since the employer had “granted [him] managerial leniency numerous times.”  To determine whether onsite attendance is an essential factor, the court looked to:

  1. the employer’s judgement as to which functions are essential;
  2. the consequences of not requiring the incumbent to perform the function; and
  3. the employer’s words, policies, and practices.


The court considered the prior leniency but also noted that the employer notified the employee, “before the final five incidents of absenteeism for which he was disciplined—and ultimately terminated—that he was being assessed for a one-year period and that any future attendance guidelines violations ‘could result in further disciplinary action.’”

Lessons Learned?  I often have conversations with HR professionals, small business owners, and managers about this issue of granting an exception to a policy or rule. They wonder if it will set a precedent that they will have to follow in perpetuity and for every other employee.  The concern is valid.  I also generally reply, “Let business needs drive your employment decisions.” I read that is what the employer did here. It assessed the job, determined that attendance was essential, granted as much leniency (reasonable accommodation) as it felt it could, and gave the employee advance notice of expectations and potential result before letting the employee go.