Stuart Edward Payne worked as a mechanic for the Fairfax County, Va., Department of Vehicle Services in 2001 when a doctor diagnosed him with panic disorder, irritable bowel syndrome and Epstein-Barr disease. In October 2001, he began taking intermittent leave under the FMLA. He exhausted all 480 hours of his FMLA leave over the next 12 months, and all but 60 hours in the following year. Between Oct. 1, 2003, and Aug. 3, 2004, he again used all 480 hours. When he requested sick leave through Sept. 30, his department manager denied his request.

On Sept. 15, 2004, Payne voluntarily retired and two days later, apparently unaware of his retirement, the county informed him that he could resign or face termination. Payne then filed a complaint in federal court, alleging violations of his rights under the FMLA, the ADA and the Fairfax County Human Rights Ordinance.

In November 2006, the U.S. District Court for the Eastern District of Virginia granted summary judgment to Fairfax County, breaking new ground in establishing the rights of employers to draw the line on extended medical absences. In a decision that surprised employment experts, the court held that a pattern of absenteeism may disqualify an employee from protection under the ADA, even if the absences were FMLA protected.

Payne v. Fairfax County strikes at the heart of a perplexing problem for employers–dealing with employees who seek ADA protection after extended, intermittent FMLA leave.

“The ability of employers to manage their absenteeism programs has been so eroded by a combination of laws–the ADA, the FMLA and state workers’ comp laws–and this decision offers an important ray of hope,” says Ken Yerkes, partner at Barnes & Thornburg.

Required Attendance

The situation Fairfax County confronted isn’t unusual. Employees with conditions such as Epstein-Barr, chronic fatigue syndrome and lupus often pose a dilemma for ?? 1/2 employers.

“These illnesses cause difficulties because they are chronic and don’t have a cure,” says Gregory Reilly, shareholder in Littler Mendelson. “The other problem is that they require intermittent leave. How far does the employer have to go to accommodate the employee? And how long do they have to do it?”

The Payne decision stakes out a position that could help employers through one dilemma–what to do when an employee who has exhausted FMLA leave wants more leave as an accommodation under the ADA. The decision turns on an ADA provision that states that employees only need to be accommodated for their disabilities if they can meet the “essential functions” of the job.

“This case brings out the tension in the ADA,” Reilly says. “On the one hand it says employers have to make reasonable accommodation, even if that means granting more leave. But it also says the employee has to be able to perform the essential functions of the job–one of which is showing up.”

Several federal circuit courts have found that attendance at work can be considered “essential” in determining whether someone is a qualified employee with a disability under the ADA. But no court had addressed whether an employer can count absences taken under the FMLA when determining ADA eligibility. Because Fairfax County produced no evidence that Payne had been absent beyond the time he took under the FMLA, the court had to decide whether taking FMLA time alone was enough to show he couldn’t meet the essential requirement of attendance at work.

In doing so, the court relied on a regulation stating that the FMLA is “not intended to modify or affect the Americans with Disabilities Act of 1990, or the regulations issued under the Act.” The court concluded that “the statutes should be read independently, and if an employee cannot perform the essential function of attendance, even if due to FMLA leave, then the employee is still not a ‘qualified individual’ within the meaning of the ADA.”

Staying Power

Employment attorneys caution that the facts of this case (the job in question required attendance at the job site, the employee had taken long leaves over three years and allegedly had been insubordinate) appeared to weigh on the court’s decision.

In addition, because Payne retired before the company threatened to terminate him, the court dismissed his retaliation allegations. However, in staking out its position that ADA protection may not be available to employees who have used FMLA leave, the court was careful to note that employees retain the right to claim retaliation or discrimination under the FMLA.

So before employers seize on this decision in applying leave policies, they need to consider the possibility of a retaliation claim and remember that the appeals court could reverse.

“It will be interesting to see if on appeal the courts will find this decision is too aggressive,” says Linda Hollinshead, partner in Wolf Block. “This is an extremely employer-friendly case, but employers still need to analyze their obligations under both laws.”

Hollinshead also warns that the EEOC may be moving in the opposite direction of this decision, challenging policies that limit employees to a certain number of weeks away from work.

Still, the decision suggests that employers may have more leeway in determining whether employees with chronic illnesses that keep them away from work must be accommodated under the ADA.

“In the past, employers were reticent to count FMLA days in an ADA analysis,” Yerkes says. “You will see more confidence in doing that because of this decision.”