In a recent case, Daniel Mecca v. Florida Health Services Center, Inc., Case No. 8:12-cv-02561 (M.D. Fla. February 3, 2014), a federal court in Florida held that where regular attendance is an "essential function" of a position and leave will not allow regular attendance now or in the immediate future, leave is not a "reasonable accommodation."

After resigning his employment, Daniel Mecca ("Mecca") brought claims against Tampa General Hospital ("TGH") for discrimination and retaliation under the Americans with Disabilities Act ("ADA") and the Florida Civil Rights Act ("FCRA") by reason of TGH's failure to grant an accommodation in the form of leave; and for interference and retaliation under the Family and Medical Leave Act ("FMLA").  Mecca, who worked for TGH as a Peripherally Inserted Central Catheter ("PICC") nurse, suffered from panic attacks and anxiety and requested "that he be allowed to go home or be absent from work if he experienced episodic flare-ups."

While TGH did not dispute that Mecca was a person with a disability, it argued, that "(1) he is not a qualified individual with a disability because he is unable to perform the essential functions of a PICC nurse, [which included regular attendance]; [and] (2) his requested accommodation of intermittent and indefinite leave is not a reasonable accommodation."  

In dismissing Mecca's ADA claim, the court held that a nurse's regular attendance at work is an essential function of the job.  The court stated "[a]n employer does not have to wait indefinitely for an employee's medical condition to be corrected, especially when it is uncertain whether the condition will improve . . . .  Despite [Mecca's] having taken leave on numerous occasions, the leave had not improved Mecca's ability to have regular attendance, nor was there any indication that it would do so at any point in the near future.  Therefore, leave was not a reasonable accommodation." With regard to the FMLA claim, the court found that Mecca had not been denied any leave when he had requested it and that Mecca had failed to show that TGH's legitimate non-discriminatory reason for the adverse employment action was pretextual.  

While the determination of whether an employee is a "qualified individual with a disability," and therefore, whether a requested accommodation is reasonable, is an inherently factual inquiry, Mecca provides employers with some guidance in situations where the employee's regular attendance is truly essential and the only accommodation requested involves the employee's irregular absence.  When engaging in the interactive process, employers in these situations should consider: (1) whether the employee's physical presence is essential to the work; (2) whether the work can be distributed in the event of the employee's absence; and, (3) whether the employee's absence will ensure his or her regular attendance in the immediate future.  Where the first question is answered in the affirmative and the latter two questions are answered in the negative, Mecca may provide support for denying a request of intermittent leave under the ADA.

Of course, employers should also be careful not to interfere with FMLA rights if an employee has a serious health condition that renders him unable to work and is otherwise entitled to FMLA leave.  The ADA and FMLA issues often overlap, so human resource professionals should exercise extreme care when considering terminating an employee because the employee cannot currently do the job.  Engaging in the interactive process early on is very important.  Err on the side of providing an accommodation as a part of your normal business practice, rather than immediately denying it.  Here, the fact that TGH already had granted Mecca multiple leaves and its flexibility in scheduling his work was a favorable factor for the employer.