Wednesday, December 16, 2015

Why we accommodate employees

Lyerly v. Southwest Airlines (S.D. Tex. 12/9/15) provides a textbook example of why we accommodate employees. This employer bent over backwards to accommodate an ill employee, and, as a result, had little difficulty in defeating her subsequent disability-discrimination lawsuit.

Lisa Lyerly worked as a flight attendant for Southwest Airlines for over 17 years. During her tenure she used FMLA for various medical conditions, including depression, peripheral neuropathy, diabetes, and addiction, each without any adverse consequences to her employment. 

Southwest’s employment policy assesses “points” for attendance violations. After an employee accumulates 12 points, a committee can approve his or her termination. Employees do not accrue points for absences excused by a doctor’s note or taken under the FMLA.

Before December 2011, Lyerly had accumulated nine attendance points, and Southwest warned her in writing that she was approaching her limit. In December 2011, Lyerly accrued 12 additional points after missing six days of work for mental-health problems for which he had not submitted a doctor’s note or requested medical leave. On January 4, 2012, Lyerly entered a rehabilitation clinic and submitted a medical-leave request dated back 17 days to December 18. On January 4, 2012, Southwest placed Lyerly on company non-retroactive medical-leave.

On February 17, 2012, Southwest terminated Lyerly upon her return to work. Lyerly’s union and Southwest, however, agreed to reinstate her with an agreed-upon 12 attendance points.

When Lyerly took additional leave seven months later, but did not return the required leave paperwork, Southwest terminated her employment.

Based on those facts, the district court had little problem dismissing Lyerly’s disability-discrimination claims.

Lyerly was neither a victim of discrimination nor interference. She had always been treated more than fairly. She had always been giving the leave she requested. She was reinstated after her initial firing. In the end, Lyerly failed to comply with a neutral attendance policy—a situation which she admittedly could have avoided. She will take nothing from Southwest.

Employers should be self-motivated to accommodate ill employees. It’s not only the legal thing to do, and the right thing to do, but a history of accommodations with an employee will serve as your best defense to deflect a subsequent discrimination claim by that employee.