Problem with excessive absences

I need guidance regarding this situation, and hope someone can help.

Employee (I'll call him Joe) works in New York City.  He is a non-exempt employee (building maintenance/handyman).  His supervisor (I'll call her Sue) called me today to ask advice on what to do about his excessive absences.

Joe's reason for his recent rash of absences is health-related; he has a problem which causes him to wake up a lot at night, so he sometimes calls in sick because he "hasn't slept all night".  He also misses work to go to doctor's appts.  Just since March 1, 2007, he has called in sick 10 times (for a total of 12 days).  He has used up all of his paid sick time for 2007, and almost all of his paid vacation time (he has asked to use paid vacation time in lieu of taking time off without pay, since he has no more paid sick time left).

He is not eligible for FMLA, because he does not work in a location within 75 miles of which at least 50 people are employed by us.  However, I don't know if there are any New York State- or NY City-specific laws which would apply, as I work at our Headquarters in California and am not as familiar as I ought to be with NY law.  I've tried looking this up on, and I'm not coming up with the answers I need.  (Also, we are a non-profit church, so there is a chance that some laws which normally apply to most employers might not apply to us.  I don't expect anyone out there to know about that, but I mention it just in case the happens to be someone who actually does know about church-employer exemptions.)

I don't know if the health problem he is experiencing would qualify as a disability under ADA.  (How are you supposed to figure that out if you aren't supposed to ask him questions about his PHI ?!  Argh!)

Sue feels that his attendance improves for a while after she speaks to him about it, but after a while, the pattern returns.  I do not see a pattern on Mondays or Fridays.  She doesn't want to find a way to fire him or anything like that, but she needs to know what she can do to make sure that she can rely on him to show up and work.  Before I advise her, I want to make sure that I know what the law allows/requires...



HR Manager 

Not sure if this is helpful or revealing, but here is his recent record:

March:  1 day

April:  1 day

May:  1 day

June:  1 day

July:  2 times, 1 day each

Aug:  4 times (two 2-day absences, and two 1-day absences) total of 6 days

Sept:  no absences

Oct:  1 day

Nov:  1 day thus far


  • 4 Comments sorted by Votes Date Added
  • I just looked and New York doesn't seem to have a state FMLA law, but I believe religious organizations are covered by the employment related provisions of ADA. Flexible leave is one type of reasonable accommodation under ADA.  I found this opinion from the EEOC that you might find useful. It discusses sleep apnea but it includes some information that you might find relevant:



    Thus, in determining whether the impairment of sleep apnea substantially limits
    an individual in any major life activities, the Commission and courts will take
    into account the use of a mitigating measure the individual happens to use,
    examining whether the individual is substantially limited in a major life
    activity notwithstanding their use of the mitigating measure. See, e.g., Taylor
    v. Blue Cross and Blue Shield, 55 F. Supp. 2d 604 (N.D. Tex. 1999) (employee
    with sleep apnea sought time off for sleep study and was terminated shortly
    thereafter; condition not a disability where sleep apnea was completely
    corrected after diagnosis and use of air pressure machine, and employee able to
    drive, hold conversations, communicate, and perform his job).

    An impairment substantially limits an individual's ability to sleep if, due
    to the impairment, his/her sleep is significantly restricted as compared to the
    average person in the general population, on a long-term or potentially
    long-term basis. For example, an individual who sleeps only a negligible amount
    without medication for many months, due to post-traumatic stress disorder, would
    be significantly restricted as compared to the average person in the general
    population and therefore would be substantially limited in sleeping. Similarly,
    an individual who for several months typically slept about two to three hours
    per night without medication, due to depression, also would be substantially
    limited in sleeping. By contrast, an individual would not be substantially
    limited in sleeping if s/he had some trouble getting to sleep or sometimes slept
    fitfully because of a mental impairment. Although this individual may be
    slightly restricted in sleeping, s/he is not significantly restricted as
    compared to the average person in the general population. See Psychiatric
    Disabilities Guidance at question 11. The determination of whether a particular
    person is substantially limited in sleeping is therefore a very fact-specific,
    individualized determination, and courts have reached varying conclusions
    depending upon the evidence of the limitation in a given case. McAlindin v.
    County of San Diego, 192 F. 3d 1226 (9th Cir. 1999), cert. denied,
    530 U.S. 1243 (2000) (holding that plaintiff, who had anxiety disorders, raised
    a triable issue as to whether he was substantially limited in sleeping where the
    evidence showed that despite the use of medication he was frequently unable to
    sleep); but see Boerst v. General Mills Operations Inc., 2002 WL 59637 (6th Cir.
    2002) (holding that getting only a little bit of sleep, 2-4 hours a night, due
    to an impairment is not a substantial limitation).


  • This definitely is a hard situation. But, under the ADA you can require a "fitness-for-duty" exam when you need to determine whether an employee is still able to perform the essential functions of their job - like if an employee suddenly starts to use more sick leave or seems ill. But, you can't make the employee be tested for AIDS, cancer, or any other condition unless you can show that the testing is job related and consistent with business necessity.

    Check out the EEOC site for more info on physical exams:

    Also, JAN is helpful in determining whether or not an employee is disabled under the ADA:

  • I think you also need to consider the history with this employee.  Has he been at the company a long time and is a good worker?  If he's just down on his luck right now for health reasons, don't you want to make every accommodation possible to help him right now in order to retain a good worker?  Also remember that whatever precident you set now, needs to be kept consistent for any future employees to avoid discrimination.  Can you put him on a less than full time employment status right now? 

    Tough situation, but we always try to do whatever we can to assist the employee in these situations because we know that whatever is going on healthwise probably isn't a walk in the park for them either!

    good luck!

  • Does this person work in multiple buildings and take direction from a dispatcher?  If their situation is anything like that, then the locus of their workplace is not the building they're in but, rather, the building from which they take direction, which may make them FMLA eligible.
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