Q:
I was recently 57 minutes late to work. I thought I was scheduled at a different time than I was. I got suspended because it was my 3rd write up. The other two were over 6 months ago. My doctor is willing to write a letter and fill out paperwork because I have ADD (Attention Deficit Disorder). I really want to keep this job and I know I messed up. Do you think this is a valid argument?
A:
If you are asking whether you can argue that you should be afforded on hour of leave per the Family Medical Leave Act (“FMLA”) instead of being disciplined and charged with AWOL, I do not think you have much of an argument. By your own admission in your email, you were one hour late to work because you misremembered your assigned schedule. It seems like a stretch, if not misleading, to claim that you were late due to a health condition, namely your attention deficit disorder (“ADD”).
Moreover, I do not think FMLA is applicable to your situation. According to the U.S. Office of Personnel Management, under FMLA “most Federal employees are entitled to a total of up to 12 workweeks of unpaid leave during any 12-month period for the following purposes:
-the birth of a son or daughter of the employee and the care of such son or daughter;
-the placement of a son or daughter with the employee for adoption or foster care;
-the care of spouse, son, daughter, or parent of the employee who has a serious health condition; or
-a serious health condition of the employee that makes the employee unable to perform the essential functions of his or her positions.
-any qualifying exigency arising out of the fact that the spouse, or a son, daughter, or parent of the employee is on covered active duty (or has been notified of an impending call or order to covered active duty) in the Armed Forces.”
See http://www.opm.gov/policy-data-oversight/pay-leave/leave-administration/fact-sheets/family-and-medical-leave/. Thus, to qualify for leave under FMLA for your own health condition, it must be a serious health condition that makes you unable to perform the essential functions of your position. It does not appear based upon the information provided in your question that your ADD renders you unable to perform the essential functions of your position.
However, if you and your physician believe that your ADD makes it difficult for you to timely arrive for work with differing or inconsistent start times, you could request a reasonable accommodation per the American Disabilities Act. Specifically, you could request a reasonable accommodation of a schedule with the same starting time every day.
In the interim, I suggest that you pay closer attention to your schedule and set an alarm or reminder on your phone to ensure that you are not late again, as repeated and continued time tardiness could ultimately result in your removal.
This response is written by Christopher J. Keeven, supervisory attorney of Shaw Bransford & Roth P.C., a federal employment law firm.
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