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Law Offices of Dan A. Atkerson

What Are the Laws Regarding Disability Discrimination and Attendance?

By Dan Atkerson on January 25, 2016

Disabled office worker with colleagueThe Americans with Disabilities Act of 1990 (ADA) strictly prohibits employers from discriminating against qualified employees or applicants based on any permanent or temporary disability.

For the purpose of the law, disability is defined as a physical or mental impairment which significantly restricts the individual’s activity.

A qualified employee or applicant is someone who can perform the required job duties with little or no accommodation.

Does Poor Attendance Disqualify You from ADA Protection?

There are many employers and policymakers who argue that an employee with chronic absence issues related to their disability cannot adequately perform their required job duties. In order to legally fire you for attendance issues related to disability, the employer must prove undue hardship is being caused by allowing you to stay on. Otherwise, it constitutes disability discrimination.

Examples of ADA Cases

Gore v GTE South Inc. – Regular and reliable attendance was ruled to be an essential function of a telephone operator’s job function.

Tyndall v. National Education Inc.A teacher with an immune system disorder was fired after missing 40 days in seven months. The court ruled in favor of the school, stating that missing 40 days in seven months was too excessive for the plaintiff to properly perform her job.

Dutton v. Johnson County Board of County Commissioners – The courts ruled in favor of a man who suffered from sporadic migraines and was fired for taking off work, and said that his absences were within the scope of reasonable accommodation.

How Do Courts Asses ADA Cases?

In order to determine whether or not you have been discriminated against or wrongfully terminated, the court will take into account answers to the following:
  • Do you qualify for ADA protection?
  • Do your absences outnumber the employer’s allotted leave time?
  • Is regular attendance an essential part of your employment?
  • Has the employer attempted reasonable accommodation?
  • Does your absence constitute undue hardship on the employer?

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