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Court: Regular attendance is generally an essential function

Fourth circuit reaffirms its stance

Posted April 3, 2019

The Americans with Disabilities Act requires employers to provide reasonable accommodations to the known disability of an employee or applicant. The type of accommodation will depend upon the specific facts involved, but one type is schedule flexibility. This does not mean, however, that employers need to allow erratic attendance in all situations.

Case in point

Hannah, a new employee hired for a five-year project, was diagnosed with depression. She informed her supervisor but did not request an accommodation. After performing exceptionally for a few years, she began to have attendance issues.

After a while, Hannah’s supervisors met with her to address her attendance issues. They put together a plan for Hannah to follow. Hannah, however, did not follow the plan. Her erratic attendance impacted her performance and that of coworkers. In light of this, she was referred to an EAP. At that time, Hannah requested four weeks of leave. She was told that she would need to meet with the EAP before the leave was approved. Hannah saw the EAP counselor but postponed her leave. Her attendance issues, however, persisted.

Hannah renewed her leave request, and it was approved two weeks later. She returned to work and finished out the project. She also sued, arguing, in part, that the employer failed to accommodate her mental illness when it rescinded the attendance plan and unilaterally required her to participate in EAP counseling instead — what she felt was a prohibited medical exam.

In siding with the employer, the court pointed out that employers have the ultimate discretion to choose between effective accommodations. This employer collaborated with Hannah in establishing the first accommodation and acted unilaterally only when that accommodation did not work.

As far as the EAP being a prohibited medical exam, the court found that an EAP is intended to be used as a voluntary service, and that the counselor did not conduct a medical exam, but rather facilitated communication between Hannah and management to improve her attendance. The court went on to say that, in this case, mandatory EAP participation would have been acceptable, as it would have been job related and consistent with business necessity. Such a request meets this when the employee requests an accommodation, the employee’s ability to perform the essential functions (in this case, attendance) of the job is impaired, or the employee poses a direct threat to himself or others.

The court reiterated that, “in addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis. Except in the unusual case where an employee can effectively perform all work-related duties at home, an employee ‘who does not come to work cannot perform any of his job functions, essential or otherwise.’ Therefore, a regular and reliable level of attendance is a necessary element of most jobs.”

Having this requirement in a job description can help support an argument that regular attendance is an essential function. In some situations, perhaps, telecommuting might be feasible, but not in all.

Hannah P. v. Daniel Coats, et al., Fourth Circuit Court of Appeals, No. 17-1943, February 19, 2019.

This article was written by Darlene M. Clabault, SHRM-CP, PHR, CLMS, of J. J. Keller & Associates, Inc.

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