Connecticut Court Says Intermittent Leave Is Not a Reasonable Accommodation
Published by Eric A. Welter and Kimberly Kauffman on June 21, 2019
The Connecticut Appellate Court affirmed summary judgment for an employer by holding intermittent leave was not a reasonable accommodation when attendance was an essential function of the employee’s position.
The plaintiff in Barbabosa v. Board of Education of the Town of Manchester was a school paraprofessional who had well-documented issues with absenteeism and tardiness. Plaintiff received formal written warning for her excessive absences (some of which were supported by medical documentation) and continued to receive documentation and counseling over the course of her employment noting her absences and tardiness. During Plaintiff’s counseling, her employer focused on the negative impact of her attendance on the students she assisted and the teachers she supported.
About seven years into her employment, the plaintiff filed a request for intermittent leave under the Family and Medical Leave Act (FMLA) because she was suffering from asthma flare-ups that triggered bronchitis, migraine headaches, fibromyalgia that causes excruciating joint and muscle pain flare-ups. Along with her request, Plaintiff submitted certification from her provider stating that she estimated Plaintiff’s flare-ups would occur about one to two times per month. Her FMLA leave request was denied, however, due to not meeting the minimum hours requirement. Plaintiff continued to receive sick leave and continued to have issues with absenteeism, thus incurring additional counseling and discipline, including an unpaid 30-day suspension.
Plaintiff then filed suit pursuant to Connecticut law for disability discrimination and failure to accommodate, alleging that she suffered from a disability and requested intermittent leave as a reasonable accommodation for her disability. Plaintiff further claimed she was discriminated against by being penalized for her disability-related absences. The district court granted summary judgment in favor of the employer and concluded the plaintiff could not perform the essential functions of her job with or without reasonable accommodation. Namely, the court held that attendance was an essential function of Plaintiff’s position and, as such, her request for intermittent absences was not a reasonable accommodation.
The Connecticut Appellate Court on appeal cited to its own precedent and several federal court decisions for the determination that attendance at work can be an essential job function. While the plaintiff had generally positive performance evaluations, the Court held these evaluations did not raise a fact issue regarding whether attendance was an essential function of her job and merely showed she was meeting performance expectations while attending work. The Court further concluded that plaintiff’s proposed accommodation of additional intermittent leave would undermine her ability to perform the essential job function—attendance—the accommodation supposedly sought to address. In other words, the plaintiff could not perform the essential function of attending work with an accommodation that provided for even more absences from work. The Court, therefore, affirmed summary judgment in favor of the employer.
This case provides useful guidance for employers (especially in Connecticut) who are faced with the difficult situation where an employee is requesting medical-related leave but also has documented problems with absenteeism. Employers, however, should remember that accommodation requests must be analyzed on a case-by-case basis and there still may be situations where intermittent leave is a reasonable accommodation.Topics: Connecticut, Disability Accommodations and Access, Employment Discrimination and Harassment, Employment Litigation, Family and Medical Leave Act, FMLA, FMLA leave, Hiring Performance Management and Termination, leaves of absence