Extended Intermittent Leave Found Unreasonable under CFEPA

The Connecticut Appellate Court recently held that a school paraprofessional’s request for extended intermittent leave was unreasonable as a matter of law under the Connecticut Fair Employment Practices Act (CFEPA). Barbabosa v. Board of Education. More specifically, the Court found that regular attendance is an essential job function, and that an employee’s request for part-time work did not constitute a reasonable accommodation because the proposal would eliminate the essential job requirement of regular attendance.

In Barbabosa, the employee was hired in 2007 and worked for several years as a classroom paraprofessional for the Town of Manchester. During her entire length of employment, she had numerous absences and tardies. Some were covered by the FMLA, while others were excused as sick leave under the collective bargaining agreement. The majority were categorized as unapproved, or nonpaid leave. When present at work, she performed satisfactorily, however, each performance review highlighted concerns regarding her failure to consistently be at work. Eventually, in 2014, she was suspended for 30 days due to excessive absenteeism.

Barbabosa then filed a CEFPA complaint with the CHRO alleging disability discrimination, and failure to provide a reasonable accommodation in the form of extended intermittent leave. Following a release of jurisdiction by the CHRO, she filed suit in the Connecticut Superior Court. The employer argued the case should be dismissed as a matter of law because plaintiff could not perform the essential functions of her job due to her absences. Further, granting an accommodation that would permit more time off in the form of intermittent leave would reduce her ability to perform her essential functions, whereas the purpose of a reasonable accommodation is to allow all essential functions to be performed.

The trial court granted defendant summary judgment, and plaintiff appealed. The Appellate Court affirmed the trial court’s decision. It found that for an employee to be qualified, he or she must be able to perform the essential functions of the job, with or without reasonable accommodation. It noted that numerous federal courts have recognized that attendance at work is a necessary job function, and that employees who are unable to come to work on a regular basis are unable to satisfy any of the functions of the job, much less the essential ones. It then cited several court decisions that reiterated that attendance is an essential function, and that the law does not require employers to tolerate chronic absenteeism, even when the absence is caused by an employee’s disability. Further, permitting part-time work when a job is full-time, would eliminate the requirement of regular attendance, which is essential to the position of teacher.

In sum, the Court stated that where regular full-time attendance is an essential job function, requests under CFEPA for intermittent leave, resulting in part-time employment, is unreasonable.  It reiterated that the goal of any reasonable accommodation is to allow the employee to actually perform the essential functions of their job, which in this case included the need to be at work on a full-time basis.

While employers must grant time off as required by the FMLA, collective bargaining agreements, and their own policies, any additional time off requested as a reasonable accommodation under the ADA or CFEPA need not automatically be granted. Instead, when employees request additional intermittent time off, employers may now have an easier time refusing the request where it can show that attendance at work is an essential function. Employers should continue to analyze each situation individually, and determine whether a request is reasonable, or would result in an undue hardship on the employer.

Also, in a slightly different vein, employers should continue to review whether an extension of full time leave beyond any required leave should be granted under the ADA or CFEPA. Where the additional leave is for a reasonable period, and the employee has a definitive return to work date by which they will be able to resume all essential functions, with or without reasonable accommodation, the employer should carefully consider extending the leave for a reasonable, finite period.

As decisions involving the intersection of leave laws, discrimination laws, collective bargaining agreements, and company policies are some of the most daunting in employment law, employers should consult with counsel when analyzing these issues.