When FMLA isn’t in play, think ADA

The 10th Circuit Court of Appeals ruled in a case that lends guidance for employers dealing with employee requests for indefinite intermittent leave beyond the federal Family and Medical Leave Act (FMLA). Such a request is generally not reasonable under the federal Americans with Disabilities Act (ADA).

Case in point

Danielle worked for a casino as a dealer. Dealers generally have to be at work to perform their job, so regular attendance is an essential function.

Danielle also suffered from severe asthma. When she started working for the casino, she asked HR about the availability of FMLA leave. Since she had not worked there for at least 12 months, she was not eligible to take FMLA leave.

The employer had a no-fault attendance policy where employees accumulated points for being late, leaving early, or otherwise missing work, with few exceptions.

A few months into the job, she suffered an asthma attack at work and left early. A week later, she missed work because of a flare-up. Danielle received attendance points for these incidents.

The next month, she asked the employer for two things as an accommodation for her condition:

1. To be relieved of attendance points for her absences, and
2. To take leave as needed.

Her request was denied as it would remove the essential function of regular attendance. She continued to miss work and was fired for accumulating too many attendance points.

The suit

Danielle sued, arguing that her requested accommodations were reasonable.

The court agreed that a reasonable accommodation is one that presently, or in the near future, enables the employee to perform the essential functions of the job.

In finding for the employer, however, the court ruled that Danielle’s request to be allowed to leave early, arrive late, and miss work altogether on an unscheduled, as-needed basis, was not reasonable, since dealers operate table games — the core service the company offers its customers — in person at the casino.

Key to remember: Indefinite leave is not reasonable under the ADA as a matter of law. Therefore, a request for open-ended leave — which effectively seeks an exemption from the essential job function of regularly and reliably attending work — is unreasonable.

Davis v. PHK Staffing, 10th Circuit Court of Appeals, No. 22-3246, December 19, 2023.