History of Absenteeism Causes Firefighter's ADA Claim to Flame Out

Indianapolis, IN (WorkersCompensation.com) – An employer does not have to change a job’s essential functions to accommodate an employee with a disability. 

As a former firefighter’s lawsuit against his fire department illustrates, regular attendance is essential in most occupations, including firefighting. After all, it’s hard to put out a fire when you’re not there. Neal v. Indianapolis Fire Dep’t, No. 1:20-cv-02921-TWP-MG (S.D. Indiana 06/10/22).  

The firefighter was scheduled to work a 24-hour shift every three days. He claimed he suffered from anxiety, depression, and PTSD. The conditions began, he said, when he first joined the department and participated in its training academy, where he was bullied and ostracized by other trainees. 

The department allowed him to attend a 30-day treatment program. But after he returned, his absenteeism continued. The department eventually terminated him based on his many unexcused absences.  

The firefighter, claiming his mental health conditions caused him to miss work, sued the department under the ADA for failing offer him reasonable accommodations. 

To support an ADA claim, the court explained, a plaintiff must show: 1) he has a disability within the meaning of the ADA; 2) he is qualified to perform the essential functions of his job either with or without reasonable accommodation, and 3) he suffered from an adverse employment decision because of his disability. The department claimed the firefighter failed to show he was “qualified.” 

In addressing the allegations, the court noted three truisms, listed in the chart below, that apply to whether an employee is qualified to perform the essential functions of his job: 

 
Here, evidence showed that regular attendance was critical to the firefighter’s job. For example, the court pointed out, the employee was assigned to work a consistently scheduled shift. 

Further, noting that “[t]he firefighting profession does not lend itself to remote work,” the court observed that “common sense provides that a firefighter must be at work to be able to respond to fires and other emergencies.” 

The court then addressed the firefighter’s claim that, while his conditions made showing up for work challenging, he could have performed the essential functions of the job with reasonable accommodations such as schedule adjustments. But he failed to specify what those changes might be and, more importantly, how they would prevent his prolific absenteeism. The court also noted that the firefighter spent a month away from work at a treatment center and upon his return, took several additional unscheduled days off, yet that leave time did not resolve his absenteeism.  

Next, the court pointed to the firefighter’s own testimony that his anxiety still affected his ability to work because it caused a "fear of people" and "fear of situations” and made it difficult to be “around people.” 

“It is difficult to imagine how scheduling adjustments or even additional leave time could have prevented [him] from being placed in ‘situations’ or ‘around people,’” the court wrote. 

The court then rejected the firefighter’s argument that the department should have changed his duties or assigned him another job. The court observed that an employer is not required to change a job’s essential functions, given that doing so would not be a reasonable accommodation. 

Finally, the court found unpersuasive the employee’s claim that the department could have done more to help reduce his anxiety and depression and help him with treatment follow-up. An employer isn’t required to go beyond providing adjustments or modifications at work, the court explained. 

Holding that the employee failed to establish that he was qualified to perform the essential functions of his job, the court granted the department summary judgment on the firefighter’s ADA claim.