Is Regular Attendance an Essential Job Function? It Depends.

I’ve written before about the need for employers to handle with care an employee’s request for unpaid time off as a reasonable accommodation under the Americans with Disabilities Act. And, I’ve also written about the hard line the Equal Employment Opportunity Commission has taken against hard-capped leave of absence policies.

All is not lost, however, for an employer who needs to deny a leave of absence to a sick or injured employee, provided that the circumstances are right and the request is handled correctly.

To be eligible for protection under the ADA, an employee must be a “qualified” individual with a disability. “Qualified” means that the employee must be able to perform the essential functions of the job with, or without out, a reasonable accommodation. If regular attendance is a bona fide essential function of the job, then an employee who needs a leaves of absence as his or her only accommodation will not be “qualified,” entitling an employer to deny the accommodation request.

“Isn’t regular attendance essential to every job,” you ask? Unfortunately, in the context of the ADA, the answer is “no.”

Attendance may be an essential function of a job, provided that the circumstances warrant such a finding.

• Is an organization sufficiently staffed such that an employee’s job functions can be performed in his or her absence?
• Will the employer sustain added overtime costs as a result of an employee’s absence?
• Will the employer have to hire substitute employee(s) to cover for the absent employee?
• Does a written job description list attendance as an essential function?
• Does the employer have formal policies providing for leaves of absence, or otherwise have a history of granting leaves to employees?

In other words, does the proposed accommodation impose an unreasonable and undue hardship on the employer? If the answer is yes, then attendance is an essential function, and a leave of absence cannot be a reasonable accommodation.

The Southern District of Indiana recently examined this issue in EEOC v. AT&T Corp. In that case, AT&T denied a leave of absence to an employee, Lupe Cardona, needing time off for Hepatitis-C treatments. AT&T argued that regular attendance was an essential function of the employee’s job as a customer service specialist. The court disagreed, and concluded that a jury should make the ultimate determination:

1. The only evidence AT&T submitted in support of its argument that attendance was an essential function of the job was the disciplinary notices it provided to Cardona for her absences.
2. The job description for Cardona’s position failed to list attendance as an essential function.
3. AT&T maintains 22 different leave-of-absence plans, which belies its claim that attendance is an essential function.

As the court pointed out in AT&T, “regular attendance is important in any job.” Important, however, does not always equate to essential. The bona fides must support the claim. Given the hard line the EEOC has drawn against the rote denial of leaves of absence as an ADA accommodation, employers should make a careful determination before denying a leave of absence as a reasonable accommodation. You might be able to support the decision based on attendance as a reasonable accommodation, but, as the AT&T case illustrates, you must have the facts to support your decision.

Jon Hyman is a partner in the Labor & Employment group of Kohrman Jackson & Krantz. Comment below or email editors@workforce.com.  For more information, contact Hyman at (216) 736-7226 or jth@kjk.com. Follow Hyman on Twitter at @jonhyman.