Each statute has a different purpose; each one provides a different benefit. However, when they are applied to real-world places like the factory floor or the downtown office, as opposed to some governmental ivory tower, they have been known to be used (and abused) by people seeking federal protection for not showing up.
THE BASICS
ADAQUALIFIED INDIVIDUAL WITH A DISABILITY
The ADA prohibits covered employersthat is, entities that employ fifteen or more employees for 20 work weeks in the current or preceding yearfrom discriminating against a qualified individual with a disability because of the disability. 42 U.S.C. 12112(a). The phrase qualified individual with a disability means
An individual with a disability who, with or without reasonable accommodation, can perform the essential functions of the employment position.
The word disability is defined as one who has
A physical or mental impairment that substantially limits one or more of the major life activities of an individual; A record of such impairment; or Being regarded as having such impairment.
42 U.S.C. 12101(2). The way courts in general and the Fifth Circuit in particular define the phrase qualified individual with a disability would probably not make much sense to someone outside the legal profession. Take the case of Phillip Still, who had only one eye; his case underscores the need to follow the steps in the statute, even at the expense of common sense.
Mr. Still was laid off, and he sued under the ADA. Mr. Still argued that because he had only one eye, he was disabled, and was therefore entitled to ADA protection. Not so fast, said the Fifth Circuit, which noted that Mr. Stills remaining eye worked wellso well, in fact, that he was a certified marksman. According to the Fifth Circuit, Mr. Still was not disabled for purposes of the ADA. Still v. Freeport-McMoran, 120 F.3d 50 (5th Cir. 1997).
FMLASERIOUS HEALTH CONDITION
The FMLA, which was passed in order to help balance the demands of the workplace with the demands of the family, protects an individual with a serious health condition, together with her children, spouse, or parent, assuming that the individual
Has been employed for the same employer for at least twelve months; and During the previous twelve months, has actually worked at least 1,250 hours.
The individuals employer must have at least 50 employees working at the individuals work site and within a 75-mile radius of that work site.
Once a qualified individual is found to have a serious health condition, that individual is entitled to up to 12 weeks of leave during any 12-month period. Thus, the definition takes on critical importance. Here it is, in all its bureaucratic glory:
For purposes of the FMLA, serious health condition entitling an employee to leave means an illness, injury, impairment, or physical or mental condition that involves:
(1) Inpatient care...including any period of incapacity...or any subsequent treatment in connection with such inpatient care; or
(2) Continuing treatment by a health care provider. A serious health condition involving continuing treatment by a health care provider includes any one or more of the following:
(i) A period of incapacity...of more than three consecutive calendar days, and any subsequent treatment or period of incapacity relating to the same condition, that also involves:
(A) Treatment two or more times by a health care provider, or
(B) Treatment by a health care provider on at least one occasion which results in a regimen of continuing treatment under the supervision of the health care provider.
(ii) Any period of incapacity due to pregnancy, or for prenatal care.
(iii) Any period of incapacity or treatment for such incapacity due to a chronic serious health condition. A chronic serious health condition is one which:
(A) Requires periodic visits for treatment by a health care provider,...
(B) Continues over an extended period of time (including recurring episodes of a single underlying condition); and
(C) May cause episodic rather than a continuing period of incapacity (e.g., asthma, diabetes, epilepsy, etc.).
(iv) A period of incapacity which is permanent or long-term due to a condition for which treatment may not be effective...
(v) Any period of absence to receive multiple treatments (including any period of recovery therefrom) by a health care provider...either for restorative surgery after an accident or other injury, or for a condition that would likely result in a period of incapacity of more than three consecutive calendar days in the absence of medical intervention or treatment,...
29 C.F.R. 825.114. With a definition as expansive as this one, the phrase serious health condition casts a wide net.
EXAMPLES OF CASES INVOLVING ATTENDANCE ISSUES
MELANIE SATTERFIELD & THE FMLA
Melanie worked as a cashier for Wal-Martat least when she showed up. We say that because her attendance history was less than stellar: for example, in a three-week period immediately preceding the events at issue, Melanie had three unexcused absences, two of which fell on the weekend, the busiest time of year for a retailer like Wal-Mart and its store manager.
Melanie continued this trend one Fridaywhy are these things always on a Friday?when she had her Mom, who also worked at Wal-Mart, give a note to the store manager. Because the store manager did not keep the note, memories differed as to its contents.
All agreed that in the note, Melanie had asked the store manager to give her paycheck to her Mom. They disagreed, however, with what else, if anything was said in the rest of the note. Melanie testified that she had written that she was having a lot of pain in her side, that she wouldnt make it in to work that day, and that she would like to make up that day on one of [her] days off. The testimony of Melanies Mom was similar, although not identical: according to her Mom, the note said that Melanie was sick, and that Melanie could make up her hours wheneveron her scheduled days off. The store managers recollection differed entirely: he testified that the note discussed only the paycheck issue, and said nothing about any illness.
Our cast of characters differed over what happened when Melanies Mom gave the note to the store manager. While Melanies Mom and the store manager both agreed that the Mom said that she did not know what was wrong with Melanie, each put a different spin on that statement. Melanies Mom said that the statement meant that she didnt know what kind of sickness Melanie was suffering from, but that Melanie was sick; the store manager, by contrast, testified that the Mom made no mention of Melanie being sick, and that Melanies Mom told him, I dont know whats wrong with that girlpresumably, in reference to her attendance.
Believing that her mother was telling Wal-Mart every day that she would miss work, Melanie, an adult, never bothered contacting the store. Contrary to this belief, however, Melanies Mom never raised this subject with the store manager.
Eventually, Wal-Mart fired Melanie, and Melanie sued under the FMLA. Confirming our view that juries impose standards on employees that they would never impose either on themselves or other individuals, the jury decided that the note had put Wal-Mart on notice that Melanie had requested FMLA. Fortunately, the Court of Appeals saw it differently and reversed the jury verdictbut only, of course, after Melanie had made a federal case out of it. Even now, Melanie is appealing to the U.S. Supreme Court. Satterfield v. Wal-Mart Stores, Inc., 135 F.3d 973 (5th Cir. 1998), petition for cert. filed, 67 U.S.L.W. 3001 (June 22, 1998).
ROGER MONETTE & THE ADA
Here is a fact pattern that we see frequently. Roger Monette worked as a customer service representative for Electronic Data Systems Corp. He was the only such representative at that job site. After an on-the-job injuryin this case, a TV set had fallen off a cart that he was pushing and hit him on the backRoger requested an Indefinite medical leave. For the next seven months, Roger received full pay and benefits.
After receiving full pay and benefits for six months without having to work, Roger tried to make this arrangement permanent by filing for long-term disability benefits. In filing for such benefits, Roger claimed that he was completely incapacitated and unable to perform the functions of a customer service representative.
As the Court euphemistically observed, Roger recovered from his total incapacity soon thereafter. A mere three weeks after his request was turned down, Roger showed up for work (unannounced) with a release from his doctor. Unfortunately for Roger, the company had already filled the customer service job during his absence.
The company tried to find Roger another position with the company. It found one, but Roger refused to even interview for it, because it was in a different part of the state. He did go on two interviews in that same locale, where both interviewers noted Rogers conspicuous lack of enthusiasm for the available position. Eventually, the company gave up and fired Roger. Roger responded by suing under the ADA, arguing that he was disabled, and that the company should have offered him a reasonable accommodation.
What is interesting is Rogers notion of reasonable. After observing that the company had been suspiciously quick in placing another person in his old job, Roger told both the trial court and the court of appeals that the company should have kept him on unpaid medical leave indefinitely until another customer service representative or receptionist position opened up. Nothing in the case suggests that Roger ever took the initiative to make this proposal to the company before being fired.
Fortunately, the court of appeals disagreed with Rogers reasonable idea. Said the Court, employers simply are not required to keep an employee on staff indefinitely in the hope that some position may become available some time in the future. Monette v. Electronic Data Sys. Corp., 90 F.3d 1173 (6th Cir. 1996).
CONCLUSION
The aims of the ADA and FMLA are both laudable. After all, who could be against helping people in wheelchairs or seeing-eye dogs mainstream into everyday life? Who could be against a statute like the FMLA that seeks to inject a little balance in favor of the family? The answer to both these questions, of course, is nothing.
However, it is also common sense that part of having a job is showing up. Unfortunately, such common sense is often lost on many ADA and FMLA plaintiffs.
Wade A. Forsman is an attorney with Clark, West, Keller, Butler &Ellis, L.L.P. in Dallas, Texas.