ADA: Attendance is an Essential Job Function

Posted by Jeanine Gagliardi on Wed, 07/10/2013 - 04:00

We’ve often posted about employers’ struggles with issues related to the Americans with Disabilities Act (“ADA”). One issue commonly faced by employers is whether an accommodation requested by an employee under the ADA is reasonable. Most recently, we posted about another gray area: whether the job duties that an employee is unable to perform because of his or her disability are "essential functions.” This is important because, if an employee with a disability cannot perform the “essential functions” of his or her job, the employer is not required to provide an accommodation.

Like other courts that have decided questions concerning attendance, the United States Court of Appeals for the 7th Circuit recently held that attendance is an essential job function.

The employee in the case, a dispatcher, was fired after failing to comply with her job’s attendance policy. The dispatcher was absent from work on multiple occasions to deal with symptoms of multiple sclerosis. Although the dispatcher provided doctors’ notes for most of the absences, the number of absences exceeded those permitted by the policy. For this reason, the employer suspended the dispatcher from work for three days.

The dispatcher then requested thirty days of leave. Consistent with its attendance policy, the employer denied the request and, when the dispatcher failed to appear for work after the suspension, it fired her. The dispatcher sued, claiming that the firing violated the ADA.

The trial court summarily rejected the dispatcher’s claim. The employee appealed, and the appellate court affirmed the trial court’s decision. The court reasoned that, generally, an employer may treat regular attendance as an essential function, and an employee who is unable to regularly attend work cannot perform the essential functions of her job. In this case, there was no evidence that the dispatcher would be capable of regular attendance after the requested thirty-day leave. For this reason, the court concluded that she was unable to perform the essential functions of her job, even with a reasonable accommodation.

The relevance of cases like this to other employers and other jobs is always uncertain. On one hand, the court recognizes that regular attendance is “generally” an essential function. On the other hand, the court’s decision may have been influenced by other factors in this particular case, including the particular job, the attendance policy, and the employer’s previous attempts to accommodate the employee. While it may be that a court may come to a different conclusion in another circumstance, this case provides some authority for employers assessing an employee’s ability to perform essential functions.

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