
Sheena Lipp worked
for Cargill from 1995 until her termination in 2014. In 2000, Lipp was
diagnosed with an incurable lung disease which required several work
restrictions starting in 2012, including: out of town doctor’s appointments,
days off during “flare ups,” a working environment free from dust or dirt, and
lifting assistance. Cargill accommodated each and every request. Cargill had a
progressive disciplinary attendance policy that allowed six unplanned absences
a year without discipline. Additional absences would trigger written warnings
followed by termination. The attendance policy also stated that employees may
be required to provide medical verification of an illness related absence.
In January of
2014, Lipp went on a nine month unplanned absence related to the health
conditions of her mother. When she returned in October, Lipp had accrued 194
unplanned absences and was given a last chance warning. Shortly after, Lipp
called in sick to work without medical verification (as required by Cargill
policy) and was terminated from her employment.
The 8th
Circuit affirmed the lower court’s summary judgment in favor of Cargill finding
that Lipp could be terminated because Lipp was not a qualified individual under
the ADA due to the high number of unplanned absences which amounted to an
inability to meet an essential function of her job—attendance. The court
further held that Lipp’s argument that Cargill failed to accommodate her after
she returned to work by refusing to provide intermittent time off for her lung
condition was not reasonable because additional absences would not enable her
to perform the essential function of regular and reliable attendance but would
actually relieve her of that function—which is not required under the ADA's
protections. Finally, Lipp argued that 195 absences were reasonable because
although Cargill could have terminated Lipp after 9 unauthorized absences it
did not do so. The 8th Circuit noted that an employer who bends over
backwards for its employees “must not be punished for its generosity by being
deemed to have conceded the reasonableness of so far-reaching an accommodation.”
As redeeming as
this decision may seem to employers well-versed with absentee employees, it is
important to remember that discrimination and reasonable accommodation cases
are very fact specific. We cannot
stress enough the importance of the interactive process between an employer and
employee. An employer must be careful when determining which absences are
authorized and unauthorized—especially if the employer is looking to change
course from how it made attendance decisions in the past.
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