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Do Employers Have to Tolerate Attendance Problems Under the ADA?


Erica Flores

Erica Flores

Today, just about any physical, mental, or emotional ailment will likely qualify as a ‘disability’ under the Americans with Disabilities Act (ADA), giving rise to a growing number of requests by employees for workplace accommodations. And, increasingly, such accommodations implicate what is perhaps the single most fundamental requirement of any job — attendance.

So how can Western Mass. employers best position themselves for potential ADA litigation when considering an employee’s request for an attendance-related accommodation? A recent decision out of the U.S. Court of Appeals for the Sixth Circuit offers some helpful guidance.

Jane Harris worked for Ford Motor Co. as a resale buyer of raw steel for auto parts. At first, her performance was strong, but it quickly began to decline, and by her final year at Ford, she ranked in the bottom 10% of her peers. Harris’s poor performance was due largely to her poor attendance, which was related to her disability — irritable bowel syndrome.

Harris disclosed her condition to her supervisor, and Ford approved a series of accommodations. First, Ford granted Harris a flexible schedule, allowing her to work four 10-hour days per week and telecommute as needed. Despite this flexibility, Harris’s attendance was irregular and unreliable, and she failed to perform the core objectives of the job.

Ford next provided Harris with workplace reporting guidelines and then allowed her to telecommute both during and after core business hours. Harris’s attendance problems continued, however, and she finally requested permission to work from home permanently up to four days per week.

In response to the request, Harris’s supervisor and two HR representatives met with her to discuss the essential functions of her position. They identified 10 different essential responsibilities and discussed her ability to accomplish each of those duties from home. Harris admitted that she could not complete four of her duties from home at all — including attending meetings with suppliers, attending internal meetings, and creating price quotes — and Ford concluded that Harris also could not effectively perform four of her other duties from home.

Accordingly, Ford denied her telecommuting request as unreasonable, but proposed two alternative accommodations — moving Harris’s workspace closer to the restroom or transferring her to a position better suited for a flexible telecommuting arrangement. Harris declined these offers and instead filed a charge of discrimination with the Equal Employment Opportunity Commission, which took up her case and filed a lawsuit against Ford on her behalf.

Ford won the case both in the district court and on appeal before the U.S. Court of Appeals for the Sixth Circuit. The court agreed with Ford that a trial was not necessary, finding that regular and predictable on-site attendance was an essential function of Harris’s job, and the accommodation she requested was unreasonable because it would have eliminated that essential function.

Although Harris disagreed that her physical presence at work was necessary, the court noted that an employee’s definition of the essential functions of her position is not valid when it is based solely on her personal viewpoint and experience. Although Ford allowed other resale buyers to telecommute, those employees telecommuted no more than one set day per week.

And, finally, there was no evidence that improved technology eliminated the need for Harris to participate in face-to-face interactions. In short, regular, on-site attendance was an essential function of Harris’s job because it was “job-related, uniformly enforced, and consistent with business necessity”; there was no accommodation available that would have allowed her to perform that essential function; and Ford had acted in good faith by maintaining an interactive dialogue with Harris and trying to accommodate her illness.

The Sixth Circuit’s opinion provides useful guidance for employers who may face requests for attendance-related accommodations.

Most importantly, employers must be able to clearly articulate the essential functions of each and every job in their workforce, including the attendance requirements. Those essential functions should be documented in written job descriptions that are provided to new employees at the time of hire and updated as job duties change.

Additionally, employers who make flexible schedules, telecommuting, or other alternative attendance arrangements available (upon request or through a policy, for example) should consider developing specific eligibility or other criteria designed to ensure that such arrangements do not impede the effective performance of the other essential functions of each position.

If employers do this homework ahead of time, they will be in a good position to handle a request for an attendance-related accommodation and will be able to better assess whether that requested accommodation is reasonable, whether it would instead eliminate an essential attendance requirement, and whether any other reasonable accommodations might be available.

Erica E. Flores is an attorney at Skoler, Abbott & Presser, P.C ., which exclusively represents management in labor and employment matters. She has successfully defended employers before state and federal courts and administrative agencies. In addition to her litigation practice, she regularly advises clients with respect to day-to-day employment issues, including decisions regarding adverse employment actions and litigation avoidance. This article is not intended as legal advice related to individual situations. If your business is facing a specific legal problem, consult your labor and employment counsel for legal advice and planning; (413) 737-4753; [email protected]

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