“Eighty percent of life is showing up.”

Woody Allen is credited for that expression, as well as a number of variations of the adage which are also attributed to him including “Eighty percent of success is showing up.” The courts have stayed busy determining whether or not employees are qualified when they cannot show up.  When employees either exhaust Family Medical Leave or the employer is not large enough to provide FMLA, disabilities may exist requiring the employer to consider accommodations including unpaid leave under the Americans with Disabilities Act (ADA).

To be qualified under the ADA, an individual must have the requisite skills, experience, education, etc. and be able to perform the essential functions of the job either with or without reasonable accommodation. Courts have held that unpaid leave is a reasonable accommodation when an individual expects to return to work after getting treatment for a disability, recovering from an illness or something similar.

The Equal Employment Opportunity Commission (EEOC) agrees that frequent, unpredictable absences without advance notice put a strain on an employer’s operations. However, EEOC says employers may have to modify attendance policies as a reasonable accommodation and must modify a no-fault leave policy to accommodate an employee with a disability unless another accommodation would enable the employee to perform or granting additional leave creates an undue hardship for the employer.

The EEOC provides a number of examples in its Fact Sheet titled, “Applying Performance and Conduct Standards to Employees with Disabilities.” In one example, an office worker with epilepsy has two seizures at work in a three-month period. The after-effects of the seizure required the individual to leave work for the remainder of the day.  Her doctor stated she may experience similar seizures once every two to four months, that there is no way to predict exactly when a seizure will occur. Although the employee’s need for leave is unpredictable, the employee will require only one day of leave every few months (or approximately six time a year). The employer grants the employee the reasonable accommodation of intermittent leave, because there will be no undue hardship and this accommodation will permit the employee to recover from a seizure.

In a recent case, (Williams v. AT & T Mobility Services, LLC) Williams used Family Medical Leave Act (FMLA) and her Short Term Disability (STD) due to her depression and anxiety attacks. She was absent much of 2013 and when she returned, she continued having difficulty reporting to work. She failed to return to work, despite three warnings and was terminated. Kirsten Williams worked in the call \center as a Customer Service Representative. The employer showed undue hardship because when someone in the call center is absent, it impacts wait times, and quality of service. Williams’ doctor suggested a flexible start time and ten-minute breaks every two hours.  AT & T did not accept this requested accommodation. Williams failed to submit timely medical information, her anxiety attacks were unpredictable and her history demonstrated her inability to work for any significant period of time. Therefore the court agreed she was unqualified for the job.

Employers should engage an employee who cannot show up due to a disability in a timely, good faith, interactive dialogue to determine what the employee needs to perform the job. Any accommodation should be reasonable and effective.