Professional Service Agreement

Terminating a Disabled Employee for Excessive Absenteeism

February 11, 2019

The United States Court of Appeals for the First Circuit recently upheld the termination of a disabled employee due to her excessive absenteeism. JetBlue employed an inflight crew member. Employee was diagnosed with multiple medical conditions. JetBlue has a “dependability” policy under which absent employees accrue points for unexcused absences. The accrual of points triggers a progressive discipline process which may culminate in termination of employment. Employee exceeded her allowable absences and JetBlue instituted progressive discipline under its policy. Nevertheless, Employee continued to accrue unexcused absences and was given another warning. After another unexcused absence, JetBlue terminated Employee. The Court held that JetBlue’s “clearly delineated and neutrally applied” attendance policy was a legitimate, non-discriminatory reason for adverse employment action distinct from disability. Next, the Court concluded that Employee had failed to use specific procedures to justify her absences under the guise of reasonable accommodation. Employee was aware of the procedures, but did not clearly link her disability to the requested accommodation. The Court concluded that such requests must be reasonably specific and form an “unmistakable request for accommodation.” We recommend every employer have SESCO review and update their Employee Handbook to ensure employers have a written attendance policy that is uniformly applied it to all employees, as well as a written policy that complies with the Americans with Disabilities Act (ADA).