History of permitting FMLA leave grounds airline's defense to ADA claim

On March 22, the 5th U.S. Circuit Court of Appeals handed down a most unusual opinion. The employee was a flight attendant for Southwest Airlines. He has psoriatic arthritis that resulted in him spending anywhere from 33 percent to 50 percent of each month unable to move. He was disabled within the meaning of the Americans with Disabilities Act. The airline allowed him to take intermittent FMLA leave for his condition. Ultimately he was terminated for violating the airline's attendance policy. He sued under the ADA. He won at trial, the trial court tossed the verdict, and the 5th Circuit said it was wrong to do so. Southwest argued that the flight attendant was not a "qualified individual with a disability" because regular attendance was a necessary qualification for the job. So far, so good. But now the 5th Circuit did something I have never seen: It held that because the airline approved the requests for intermittent leave, then attendance on scheduled days at the job (any job) was not required by the airline. Here is the court: “[T]here was sufficient evidence that [Southwest's] own actions reflected that attendance on scheduled days was not required. Southwest approved [his] intermittent FMLA leave, which permitted [him] to miss over half of each working month without notice. . . . it could reasonably be found that Southwest essentially conceded that [he] was qualified by granting him intermittent FMLA leave and then tolerating his FMLA-approved absences for seven years." The court went on to say that a winning argument for the airline may have been that the employee's disability prevented him from showing up for work consistently on his scheduled days, but that is cutting the salami a little thin. It is hard to see how this reason is much different from the attendance reason. So, an employer that honors its legal obligations under one law may end up violating its obligations under another. Carmona v. Southwest Airlines Co.