Following her hospitalization, the employee asked her employer to excuse her absence pursuant to company policy and the Americans with Disabilities Act (ADA), because her absence was caused by her disability.

The employer refused to excuse the absence and terminated the employee.

The employee filed a charge of discrimination with the Equal Employment Opportunity Commission (EEOC) alleging violations of the ADA. After an investigation, the EEOC found reasonable cause to determine that the company violated the ADA by denying the employee a reasonable accommodation and terminating her. The EEOC then attempted to settle the matter with the employer through the EEOC’s “conciliation” process. When the EEOC determined that it was unable to secure a conciliation agreement acceptable to the EEOC, it sued the employer on behalf of the employee, bringing an action under Title I of the Americans with Disabilities Act of 1990 (the “ADA”) and Title I of the Civil Rights Act of 1991 to correct unlawful employment practices on the basis of disability.

The EEOC’s federal lawsuit alleged that the business violated the ADA by failing to accommodate the employee’s disability-related absence from work and then terminating her because of her disability. Equal Employment Opportunity Commission v. Macy's, Inc/Macy's Retail Holdings, Inc., Civil Action No. 17-cv-05959.

The lawsuit was recently settled. The company agreed to pay the employee $75,000 to settle the disability discrimination lawsuit.

Firing an employee with asthma for absence?

In Florida, can a business fire an employee who misses work because of asthma?

Here is a recent case that involved this situation:

A long-term employee had asthma and she also had complications in her leg, including varicose veins and arthritis, which could become exacerbated by the asthma. The employee provided the employer with records of her asthma. The employee had a medical emergency related to her asthma, for which she sought emergency medical care at a hospital emergency room. Her medical emergency that day prevented her from working her scheduled shift.

According to the EEOC’s lawsuit, the asthmatic employee worked for the company for nearly eight years, but she was fired after a one-day absence due to needing immediate medical attention for her asthma. The company policy permitted absences for disability-related reasons. However, in this case, the employer denied the employee’s request to excuse the absence, even though she had to be seen in a hospital emergency room, and fired her three weeks later.

In addition to the $75,000 in monetary relief to the employee, as part of a consent decree settling the suit the company will also have to provide additional relief intended to improve the workplace for employees with disabilities. Under the settlement, the company will train certain employees on disability law and accommodation requirements under the ADA. The business will also monitor requests for accommodation and complaints of disability discrimination at two of its stores and report those to the EEOC.

EEOC spokespersons stated, “[t]he ADA requires employers to reasonably accommodate disability-related absences that enable their employees to perform their job…Here, a one-day absence would have enabled the employee to return to the job she held for almost eight years.” and the Employer’s “response to the employee’s absence was not reasonable. The employee found herself in a potentially life threatening circumstance and phoned [the employer] to explain her absence before going to the hospital. The following day, she provided [the company] documentation from the hospital showing she was treated for asthma. Rather than accommodate the employee, [the business] fired her.”

The "facts" from the above case were taken from the EEOC's settlement announcement and the lawsuit complaint.

Florida employers are reminded that one of the six national priorities identified by the EEOC’s Strategic Enforcement Plan (SEP) is for the EEOC to address emerging and developing issues in equal employment law, including issues involving the ADA.

If you need any assistance in addressing disability issues concerning your Florida business or if you need guidance in any employment policies, please email the Law Office of David Miklas, P.A. at 1-772-465-5111.

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Law Office of David Miklas, P.A.

Law Office of David Miklas, P.A.

Labor & Employment law - Employers only