New York City Office of Administrative Trials and Hearings Administrative Law Judge [ALJ] Julia H. Lee recommended termination of the employment for a patient care associate [Respondent] who has been excessively absent since November 2020 and absent without leave (“AWOL”) since May 2022.
Respondent did not dispute that she has been absent without leave from May 2022 to the present but contended that her absence was due to her Agency [Employer] reassigning her to the operating room in retaliation for her taking Paid Family Leave and the Employer’s failure to grant her reasonable accommodation request. The ALJ found that Respondent’s absence from work since May 2022 was not obviated by her submission of a reasonable accommodation request and that she was not entitled to an accommodation where she would not be performing the essential functions of her job. Judge Lee also found that the Employer had proved Respondent was excessively absent on 34 dates from November 2020 through February 2022, and was AWOL on numerous occasions.
In contrast, the ALJ found Respondent was on bereavement leave following the death of her father. As a full-time employee, Judge Lee opined that Respondent was entitled to a “maximum of four workdays with pay for a death in the immediate family”. In addition, Judge Lee dismissed an AWOL charge for Respondent’s absence from September 2, 2021 through November 5, 2021, explaining that the Employer cannot prove that Respondent was AWOL if the Employer had placed Respondent on leave for failure to comply with the COVID-19 vaccine requirement and then charged her with being AWOL for the same period.
Finding that Respondent was excessively absent on 34 dates from November 9, 2020, through February 2, 2022; was AWOL from February 18, 2021, through April 18, 2021; was AWOL on March 28, 2022, and from March 30, 2022, through May 10, 2022; and was AWOL from May 12, 2022, "to the present", Judge Lee, and noting that Respondent has no prior disciplinary history and was a long-time employee with the Employer are "mitigating factors", the ALJ concluded that the Employer's seeking Respondent's termination "is appropriate" and so recommended.
Click HERE to access Judge Lee's decision.
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