Dive Brief:

• An employee with heart problems, who was told he was fired due to "health issues and doctors' appointments," was allowed to proceed with his claim that he was regarded as disabled and fired on that basis, in violation of the Americans with Disabilities Act (ADA) (Baum v. Metro Restoration Services, Inc., No. 18-5699 (6th Cir. April 11, 2019)).
• The employee, Jonathan Baum, was unable to prove he had a disability under the ADA because he failed to use his doctor, or anyone else with specialized medical knowledge, as an expert witness, so he lacked the evidence he needed to create a viable issue of fact on this point.
• Although the employer claimed that Baum was fired due to "excessive absenteeism and failure to perform his job duties," the stated reason for firing him — health issues and doctors' appointments — could allow a jury to find that Baum was perceived as having a physical impairment and was fired because of that perception. Accordingly, the 6th Circuit reversed a lower court's ruling of summary judgment for Baum's "regarded as" claim, allowing it to proceed.

Dive Insight:

The complicated and costly nature of absence and disability management can create headaches for employers and their HR departments. But a solid comprehension of relevant laws and thorough training can enable employers to treat workers with disabilities in a way that complies with legislation and allows business to continue functioning.

Depending on an employee's condition, it may be appropriate for an employer to grant leave under the Family and Medical Leave Act on either a one-time or intermittent basis. In some cases, the ADA may even require leave beyond what FMLA guarantees. It may also be possible to work with the employee to find a reasonable accommodation that enables them to perform the essential functions of their job.

For some jobs, regular attendance is considered an essential function, meaning it would not be reasonable for an employer to accommodate an employee by allowing them to work from home. For other types of jobs, however, an employee need not be in the office every day. As remote work becomes more common across the workforce generally, it becomes a more reasonable — and less burdensome — ADA accommodation.

There are limits, of course, to any accommodation. An employee must still be able to perform the essential functions of his or her job, with or without reasonable accommodations, to be considered a qualified individual. Earlier this year, the 8th Circuit ruled that a meat and processing facility worker in Iowa who racked up 195 unplanned absences in a single year did not qualify for ADA protection.

What's "reasonable" depends on a number of different factors, including the type of work the employee performs, the nature of the employee's disability, and the specific tasks that constitute the essential functions of the employee's job. It's important to keep an open dialogue with employees and try to work out a mutually satisfactory arrangement in good faith.

Managers should understand all of this, Ogletree Deakins Office Managing Shareholder Gregory J. Hare told attendees at a conference earlier this year. "Every single manager needs to know a little something about employment law 101," he said. Why? Managers speak on behalf of the company, Hare said. When they make a mistake, the company may be held accountable.