When an individual is suffering from a disability, as defined in the American’s with Disabilities Act, their employer is required to work with them to find a reasonable accommodation that would allow them to complete all of the “essential duties” of their job. If the individual cannot complete all of the essential duties then they could be terminated even though they have a disability. Therefore, determining what qualifies as “essential” is a crucial step in the accommodation process.
While courts will generally look to a number of sources to determine what duties are essential to any given job (job descriptions, time sheets, etc.), there are some aspects of work that are nearly always considered to be essential. Attendance at work is one of these aspects that courts will almost always accept as being “essential” without much further analysis. However, a recent decision from a federal court in Indiana shows that courts may be willing to analyze how essential attendance is on a case-by-case basis. See E.E.O.C. v. AT&T Co., Case No. 1:12-cv-00402-TWP-DKL (S.D. Ind., Nov. 20, 2013). This case could be useful for anyone whose disability affects their ability to routinely attend work.
In AT&T, an employee was diagnosed with Hepatitis C, a liver disease that can cause liver scarring and failure. The disease, along with side effects from medication for the disease, led the employee to begin missing work. After one such absence, the employee was given a written warning that stated “Attendance is an essential function of your job.” The employee then notified her employer of the disease and was placed on temporary disability leave. The employee was out for over 24 weeks as she sought treatment. The employee reported to her employer that she was fully cleared to return to work and she was terminated two days later. The employer justified the termination by counting all of the missed absences after the 12 weeks protected by the Family Medical Leave Act. The employee, through the Equal Employment Opportunity Commission, brought suit for failure to accommodate and the employer moved to dismiss the suit.
In making it’s decision, the court carefully considered whether the employer had proven that attendance was an essential function of the employee’s work. The court noted that attendance was not part of the job description for the employee’s post and that the employer had not been required to hire anyone new to cover the employee’s work or to require other employees to work overtime. Additionally, the court noted that the employer provided a plethora of formal leave of absence plans, including the one that the employee took advantage of. Weighing these facts in the light most favorable to the employee (which is the applicable standard at this point in the litigation), the court could not conclude that attendance was an essential function of the employee’s position. Therefore, the court denied the motion to dismiss and allowed the litigation to move forward.
What is most important about the court’s decision here is not necessarily their finding but is instead that they took the time to closely review the facts of the situation as to whether attendance was essential. Previous courts have often just taken the employers word that attendance was essential which then makes it far more difficult for employees with disabilities to request time off, even unpaid, after they exhaust their FMLA leave. If other courts follow the example of the AT&T court in analyzing requests for accommodations under the ADA we may see more leeway for individuals who need time off to deal with their health conditions.