Since Congress passed the Americans with Disabilities Act (ADA) in 1990 and state legislatures enacted their own protections requiring employers to accommodate disabled workers, courts have grappled with the reasonableness of accommodating an employee's excessive absenteeism caused by a disability. In Barbabosa v. Board of Education of the Town of Manchester, the Connecticut Appellate Court faced that question, holding on April 23, 2019, that attendance was an essential function of Barbabosa's job and, therefore, her employer was not liable for either disciplining her for excessive absenteeism or denying her requests for extended intermittent leave.
The ADA defines "disability" as, inter alia, an impairment that substantially limits a major life activity. Barbabosa sued under the Connecticut Fair Employment Practices Act (CFEPA), which, like most other state and local anti-discrimination statutes, follows on the heels of the ADA. If an employee is disabled, the ADA and the CFEPA require an employer to provide a reasonable accommodation that would enable the employee to perform the essential functions of his or her job. An employer need not provide the exact accommodation that a disabled employee requests, only one that is reasonable. An accommodation that eliminates an essential function of an employee's job is per se unreasonable. Whether a job duty is considered an essential function depends on the nature of the job.
Barbabosa is a paraprofessional with the Manchester Board of Education and, at the time she initiated her lawsuit, had held that position for approximately nine years. She claimed she had a number of health conditions rendering her disabled. While her evaluations generally reflected that she performed her job well when she attended work, in almost every year of her employment she exceeded her allotted number of personal leave days and was frequently tardy, causing documented disruption to the educational environment. She claimed her attendance problem was the result of her disability, and on two occasions asked for extended intermittent leaves of absence as an accommodation. The Board of Education disciplined her for excessive absenteeism and denied her requests for extended intermittent leave. Barbabosa's lawsuit claimed the discipline and denial of her accommodation requests violated the CFEPA.
In affirming the Superior Court's order granting summary judgment to the Board of Education, the Connecticut Appellate Court relied on federal ADA law. First, it held that, as a matter of law, attendance is an essential function of Barbabosa's job. For guidance, the court examined three federal cases involving educators: Pierce v. Highland Falls-Fort Montgomery Central School District, Ramirez v. New York City Board of Education and Mescall v. Marra, which all held attendance is an essential job function of an educator. Like in those cases, the Appellate Court looked to the relevant sections of the collective bargaining agreement, the union co-presidents' testimony as to the importance of attendance, letters written to Barbabosa stressing the negative impact of her absences on the educational environment and Barbabosa's evaluations outlining the same. The court rejected Barbabosa's argument that her generally positive performance evaluations precluded summary judgment since the evaluations also noted concerns about her absenteeism and punctuality. Quoting the Superior Court's decision, the Appellate Court stated that although "the evaluations of the plaintiff show that she can perform the duties of a paraprofessional when she goes to work, [] the plaintiff is absent far too often." (Emphasis in original).
Second, the Court held that an extended intermittent leave is not a reasonable accommodation where, as in Barbabosa's case, it eliminates the essential function of attending work. Again relying on Pierce, Ramirez and Mescall and the same evidence outlined above, the Appellate Court held:
[T]he plaintiff's proposal for intermittent extended leave was not a reasonable accommodation, as a matter of law, because that proposal would eliminate the very essential job function it purports to address. Put another way, we fail to see how it is possible to perform the essential function of attending work through an accommodation that provides for even more absences[,]...[Barbabosa's request] would only exacerbate her existing attendance issues and would further undermine her ability to perform an essential function of her employment, namely, maintaining regular attendance.
Although this case analyzed Connecticut state law, the Appellate Court relied heavily on federal law in reaching its conclusion, making it instructive to all U.S. employers, especially those in the educational field. The take-aways from this case are clear: an employer may discipline an employee who fails to meet attendance guidelines that are part of the employee's essential job functions even where absenteeism is the result of a disability, and an employee's request for extended intermittent leave to accommodate a disability that renders her otherwise unable to meet attendance guidelines is per se unreasonable. This decision also highlights the importance of documentation. The school board's explicit documents showing the importance of attendance, and documented communication to Barbabosa about the disruption her absences caused, weighed heavily in favor of a finding in the school board's favor. Employers who confront these difficult issues should document attendance issues as soon as they begin, and before taking the final step of disciplining an employee or denying a request for accommodation like Barbabosa's, consult with an attorney or human resources professional to ensure the reasoning of the Barbabosa decision is likely to lead to the same outcome in the employer's specific scenario.
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