Employer Did not Violate ADA by not Excusing Unannounced Absences

December 31, 2007 (PLANSPONSOR.com ) - The 8th U.S. Circuit Court of Appeals has affirmed a lower court's ruling that an employer did not violate the Americans with Disabilities Act (ADA) by terminating an employee who suffered from depression for attendance problems.

In its opinion, the appellate court pointed out the ADA provides that when “the disability, resulting limitations, and necessary reasonable accommodations, are not open, obvious, and apparent to the employer, as is often the case when mental disabilities are involved, the initial burden rests primarily upon the employee … to specifically identify the disability and resulting limitations, and to suggest the reasonable accommodations.”

Elizabeth Rask claimed she informed her employers she was having trouble with her depression medication and “I might miss a day here and there because of it.” The court rejected her reasoning and said that because Rask did not inform Fresenius Medical Care of the specific limitations that her depression gave rise to, it had no duty to find an accommodation for her.

The appellate court further said that allowing Rask to be absent cannot as a matter of law be a reasonable accommodation given the circumstances of her employment. Rask was responsible for administering dialysis to seriously ill patients, and only worked two days a week.

The law required that Rask demonstrate she could perform the essential functions of her job either with or without a reasonable accommodation in order to be considered a “qualified individual” under the ADA. After a history of unexpected absences, Rask admitted she could not come to work on a regular and reliable basis, which was essential for her position, the court ruled.

Rask also claimed that Fresenius violated the Family and Medical Leave Act by terminating her employment based on absences for which she should have been given FMLA leave. However, the appellate court agreed with the lower court that Rask would need to apprise Fresenius of more than the mere fact that she had been diagnosed with depression to put them on notice that she had a serious health condition.

The court concluded that there was no evidence in the record that Rask at any point gave her supervisors any details about her depression, its severity, or any incapacity that it might give rise to, and that side effects of medication are not covered by the FMLA because as they are not a “chronic health condition.”

“The evidence in this case simply cannot support a finding that Fresenius was on notice that Ms. Rask needed FMLA leave,” the opinion said.

The opinion in Rask v. Fresenius Medical Care North America, 8th Cir., No. 06-3923 (Dec. 6, 2007) is here .