Got employees who are chronically absent or late?

Almaris suffered from fibromyalgia. Due to the medical treatments, the employer allowed her to work a four-day workweek instead of five. Despite this reduction in hours, Almaris continued to have attendance problems, including being tardy, having unscheduled absences, and altering her attendance records.

Because of this, the employer required her to request scheduled leave at least seven days in advance. If she couldn't, she had to contact her supervisors at least one hour before the beginning of her shift to explain the need for unscheduled leave. She also had to produce medical documentation from her physician for each absence. If she didn't meet these requirements, she would be fired.

Employee fired

This went on for years. Eventually, because of her continued attendance issues and failure to follow the company leave procedures, the employer fired Almaris. She sued, claiming that the employer discriminated against her because of her condition, sex, and pregnancy.

The court dismissed Almaris' claims. It found that she did not show that an accommodation would have enabled her to perform the essential functions of her job. An essential function of the job was physically being at work.

The court found that the employer had ample evidence of legitimate, nondiscriminatory reasons for firing Almaris — her poor attendance record.

Steps employers can take

Employers in similar situations can follow the steps this employer took to achieve the win. The steps include:

• Document employee attendance issues.
• Communicate with employees and keep copies of the communications.
• Work with employees on accommodations. Provide ones that work and try to find alternatives to those that don't.
• Give employees ample warnings of the potential consequences for failing to improve their attendance.
• Obtain and document input from supervisors.
• Ensure job descriptions clearly indicate that workplace attendance is an essential function.
• Document any attendance issues even while a different accommodation is provided.

Taking these steps can help employers successfully argue their case should an employee file a claim.

Almaris Serrano-Colon v. United States Department of Homeland Security, First Circuit Court of Appeals, No. 22-1089, November 13, 2024.