No problem, I asked a lot of questions. Thank you for confirming that. Normally, under Arizona law, and employer is free to terminate an employee who cannot meet attendance requirements unless they have the protection of FMLA
or a contract, or company policy. However, an employee who is disabled and has been on FMLA can request a reasonable accommodation by way of additional time off. Then under the ADA
, the employer must accommodate them unless they determine that "(1) there is another effective accommodation that would enable the person to perform the essential functions of his/her position, or (2) granting additional leave would cause an undue hardship." (on the employer.) You can see a more in depth discussion of reasonable accommodations under the ADA by going to: http://www.eeoc
So, unless your employer can meet one of the two tests I mentioned, they must allow you extra time off, even if they have a neutral attendance policy.
If you want to protect your legal rights under the ADA, then it would generally be ill-advised to resign. Instead, it would usually be better to force the employer to take the adverse employment action. That way you would have more facts in your favor for a wrongful termination
case under the ADA that you could file with the EEOC and sue for.
I don't know what the retirement policy is with your employer, but I would assume that you are still entitled to any pension or retirement benefits you have accrued whether they let you go due to attendance or whether you resign. So, unless you know that you will lose everything if you are let go for attendance, then the answer for retirement would be the same.
Ultimately though, if you know you will never be able to return to perform the essential functions of your job, with or without accommodations, then you might want to consider retiring and applying for Social Security Disability if you cannot continue to work and are not yet qualified for regular SS benefits.
Please let me know if you need any clarification. I would be glad to assist you further if I can.