To be able to maintain a suit for violation of the Americans with Disabilities Act (ADA) an employee must be a "qualified individual with a disability," which is defined as "an individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds." In Payne v. Fairfax County, No. 1:05cv1446 (JCC), 2006 U.S. Dist. LEXIS 79725 (E.D.Va. Nov. 1, 2006), the court addressed whether an employee's leave taken pursuant to the FMLA may be held against the employee in determining whether the employee can perform the "essential functions" of his/her position within the meaning of the ADA. The court held that it may.
Plaintiff Stuart Payne was employed by the Defendant as an auto mechanic with the Fairfax County's Department of Vehicle Services. Regular attendance at work was an essential function of Payne's position. Payne was diagnosed with panic disorder, irritable bowel syndrome, and Epstein-Barr disease (which manifested itself with fatigue, weakness, a desire to sleep, and a locking of joints and limbs). Payne requested that his condition be accommodated so that he could come in late, leave early, or miss a day so that he could keep his job. He incurred frequent unscheduled intermittent absences. He was repeatedly encouraged to minimize unscheduled absences, reminded of the County's attendance policy, and informed that if he exceeded his FMLA entitlement, his continued employment would be re-examined. In August 2004, Payne requested sick leave for the period August 20 through September 30. By this time he had already exhausted all of his available FMLA leave. Fairfax County denied his request. He thereafter retired form his position, and sued alleging violations of the FMLA and ADA.
Payne sued Fairfax County alleging that he was constructively discharged as a result of the County's failure to reasonably accommodate his condition with liberal leave. The County moved for summary judgment to dismiss the disability claim. The County argued that Payne was not a "qualified individual with a disability" because he was unable to meet all of the essential functions of the position, namely the essential function of regular attendance. As such, he was not entitled to the benefits and protections of the ADA. The court agreed with the County.
In finding that FMLA leave may be used against an employee for purposes of determining whether the employee is an ADA-qualified employee, the court relied on 29 CFR 825.702. In pertinent part, the regulation provides:
Nothing in the FMLA modifies or affects any Federal or State law prohibiting discrimination on the basis of ... disability. FMLA's legislative history explains that FMLA is "not intended to modify or affect the ... Americans with Disabilities Act of 1990, or the regulations issued under the act.
The Court found that the DOL regulation "explicitly provides that the FMLA does not modify the ADA in any form. This leads this Court to conclude that the statutes should be read independently, and if an employee cannot perform the essential function of attendance, even if due to FMLA leave, then the employee is still not a "qualified individual" within the meaning of the ADA. To rule otherwise would be a judicial expansion of a Plaintiff's rights under the ADA and run directly contrary to" Section 825.702. In support, the Court cited the decision of the Eighth Circuit in Spangler v. Federal Home Loan Bank of Des Moines, 278 F.3d 847, 852 (8th Cir. 2002), which held that the rights created by the FMLA are fundamentally different than those granted under the ADA.
Comment: The court observed that issue has not been addressed by any Circuit court. Note that it was undisputed that regular attendance was an essential function of the mechanic position in Payne. In ADA litigation, employers often assert that an essential function of the position is regular attendance. Employees, however, often dispute this assertion with evidence of liberal leave policies or practices. Court have permitted temporary leave as a reasonable accommodation to an employee's disability. Courts have generally frowned on overly liberal or extensive leave as an ADA reasonable accommodation, finding that such leave is an undue hardship to the employer that does not have to be accommodated.