Firing Employee for Disability-Related Tardiness Results in ADA Lawsuit
Although this isn't a workers' compensation case, I think it illustrates how an employer's decision to terminate a disabled worker's employment for violation of one of its policies can have unintended consequences.
This Florida employer had adopted what it called a "no-fault" policy for absences and tardiness. Under its policy, an employee's absence from or tardiness to work was neither "excused" nor "unexcused." No doctor's excuse was required. However, each employee was allotted a certain number of "occurrences" before disciplinary action was taken, and each tardy - no matter what the reason - counted as one-half of an "occurrence." The employee in this case was a paraplegic who despite his condition had been performing his job satisfactorily for 17 years. Nevertheless, his medical problems routinely made him late for work. Because of his disability-related tardiness, he eventually earned a sufficient number of "occurrences" under the employer's new policy to warrant his dismissal.
Would the employee's violation of the employer's policy here have been sufficient to warrant a finding of "misconduct" under s.440.15(4)(e), thus justifying a denial of any temporary partial disability benefits which might have been owed under the Florida Workers' Compensation Act? It has been my experience that insurance carriers sometimes wrongly assume that if an employee is fired for a violation of some employer policy, he must be guilty of "misconduct." But as I wrote about here, the question whether an employer is justified in terminating an employee is different from whether that employee is guilty of "misconduct." And although several court decisions hold that excessive absenteeism can justify a finding of "misconduct," most hold that where the absenteeism is caused by the employee's illness, it is not "misconduct."
As I said, this was not a workers' compensation case. Rather, the discharged employee here brought suit against the employer under the Americans with Disabilities Act, contending that the employer had failed to offer a "reasonable accommodation" to his disability. Although the federal district court granted summary judgment for the employer on the grounds that punctuality was an "essential function" of the job, the Eleventh Circuit Court of Appeals found that genuine issues of material fact remained on that issue and therefore reversed. The case is Holly v. Clairson Industries, L.L.C., decided on 7/19/2007.
