EMPLOYEE ATTENDANCE » Can an employee be terminated for excessive absences?

excessive-absencesThe answer can be quite complicated . . . unless you live in Oklahoma.

In Gandall v. FlightSafety Int’l Inc., a federal court judge for the Northern District of Oklahoma recently reaffirmed that attendance could be considered an essential job function under the Americans with Disabilities Act. As such, an employee may be terminated for excessive absences if an employer can prove that attendance is essential to the successful and satisfactory performance of the job.


Terry Gandall was a flight simulator technician employed by FlightSafety International as a Technician Simulator Maintenance I — or SimTech — from February 2008 to April 2010. Gandall’s position required him to stand, walk, sit, climb, stoop, kneel, crouch, crawl, climb stairs, and regularly stand at least 50% of the time to perform his job. One of the essential duties and responsibilities listed in Gandall’s job description is “adherence to a work schedule including prompt and regular attendance.” These essential duties and responsibilities are, according to FlightSafety, “essential to the successful and satisfactory performance of [the] job.”

Gandall claimed he was disabled because he had heart disease with resulting circulatory issues and leg cramps, which made him frequently absent from work. Gandall provided notice of his absences by way of phone call or voicemail on the day of each absence. In 2009, Gandall received intermittent FMLA leave. In November 2009, his doctor released him to return to work without restrictions. By November 30, 2009, Gandall had exhausted his FMLA leave, yet still was frequently absent into 2010. During this time, Gandall was assigned temporarily to a desk job with a different division. Over 18 weeks, he missed over 23 days of work until his FMLA expired, then missed an additional 12 days and 18 hours.

Gandall retuned to work as a SimTech and missed another 170 hours of work between December 2, 2009, and April 26, 2010. Gandall’s employment was finally terminated as a result of his excessive absences. He then brought an action under the ADA claiming discriminatory termination and failure to accommodate.

To bring a claim under the ADA, a plaintiff must establish that (1) he is “disabled” within the meaning of the ADA, (2) that he is qualified with or without reasonable accommodation to perform the essential functions of the job, and (3) that he was discriminated against because of his disability. The crux of the issue in this case was whether Gandall met his burden to establish that he was qualified with or without a reasonable accommodation to perform the essential functions of his job.

Gandall’s job description included “adherence to a work schedule including prompt and regular attendance” as an essential duty and responsibility of a SimTech. The court found that, “physical attendance in the workplace is itself generally considered as essential function.”

Two months before Gandall was terminated, he was counseled about his excessive absences and signed an agreement acknowledging that his doctor had given him no work restrictions. The agreement also stated that, “he should be able to come to work and perform his duties on a full time basis … and if not he understands that FlightSafety will not have a position for him.” Furthermore, FlightSafety had undisputed evidence that Gandall’s absences required FlightSafety to juggle job assignments, and other team members had to pick up the slack to ensure the completion of SimTech jobs.

Gandall did not dispute that he could not perform the attendance job function of his position, but argued that he could if given a reasonable accommodation. For example, Gandall suggested he have his job restructured or transferred to another department or shift, or FlightSafety could have provided Gandall with part-time or intermittent leave. The ADA, however, does not require creation of a job position, and reassignment is not required when the employee “is not qualified for a vacant job, no vacancy exists, or reassignment would have been a problem.” As to Gandall’s suggestion of intermittent leave, the ADA does not require an employer to grant an employee indefinite leave as an accommodation.

Gandall also argued that FlightSafety was required to engage in an interactive process with an employee to determine if a reasonable accommodation existed. The court found, however, that an employer can still prevail without having sufficiently engaged in the interactive process if the employee failed to show that an accommodation was possible.

The court ruled in favor of the company, stating that Gandall did not provide any evidence that he was qualified to perform the essential duties of his job. The court also stated that FlightSafety provided “significant, undisputed evidence that Gandall’s employment was terminated because of his excessive absences — a legitimate non-discriminatory business reason.”

The Bottom Line

First, an employer needs to determine if regular and consistent attendance is really essential for the performance of certain positions. If so, it is wise to have an attendance policy in place that includes prompt and consistent attendance as an essential function in a position’s written job description. But remember, it’s the employer’s burden to prove that attendance is an essential job function; therefore, an employer needs to be certain that attendance is crucial to the fundamental job duties of the employment position. Furthermore, as in the case with Mr. Gandall, if absences are related to a medical issue, the employer has the duty to consider possible accommodation.