By: Vanessa A. Gonzalez*
The Americans with Disabilities Act (ADA) prohibits discrimination against employees who have a disability or a perceived disability. If the employee is a “qualified employee” with a disability and asks for a reasonable accommodation, the employer is required to enter into an interactive process with the employee to discuss a possible reasonable accommodation. A “qualified employee” with a disability means that the employee can perform the essential functions of the job with or without a reasonable accommodation. Granting the employee an extended leave of absence as a reasonable accommodation has been an ongoing question and struggle for employers. Many courts have found, “indefinite leave is not a reasonable accommodation.” Allen v. Babcock & Wilcox Technical Svs. Pantex, L.L.C, No. 2:12–CV–00225–J, 2013 WL 5570192 (N.D. Tex. Oct. 9, 2013) (citing Amsel v. Tex. Water Dev. Bd., 464 F. App’x 395, 400 (5th Cir. 2012)). Courts have consistently referred to an employer’s judgment that attendance is an essential function of the job. Now, the Northern District of Texas has found that attendance at work can be an essential function of the job. Id. If an employee cannot satisfy the essential functions of the job with or without a reasonable accommodation, then the employee is not a “qualified individual with a disability” and will be unable to maintain a claim under the ADA.
The case referenced above is Allen v. Babcock & Wilcox Technical Svs. Pantex, L.L.C., No. 2:12–CV–00225–J, 2013 WL 5570192 (N.D. Tex. Oct. 9, 2013). The plaintiff was diagnosed with a disease that qualified as a disability under the ADA. Between January of 2010 and March of 2011, the plaintiff missed part or all of 174 days of work. Eventually, the plaintiff’s doctor certified that she would never return to work. The defendant terminated the plaintiff because of her excessive absenteeism and her doctor’s representation that she would never return to work, and the plaintiff filed suit for violations of the ADA. The employer established that attendance was an essential function of the job by the following undisputed facts: (1) the employee was required to interact on a daily basis in person with customers and trainees; (2) the employee was required to meet certain long-term deadlines that were jeopardized by her absences; (3) the employee was required to implement programs on a daily basis; and (4) the employer was forced to hire another employee to fill the plaintiff’s position during the period the plaintiff was absent for almost 200 days. The court determined that the plaintiff could not perform the job with or without a reasonable accommodation. As such, she was not a qualified individual with a disability, and her ADA lawsuit failed.
However, the case should not be viewed as an employer’s right to terminate if the employee does not show up for work. There are still Family Medical Leave Act (FMLA) considerations as well as any other employer-provided leave policies to consider. Also, in some cases, extended leave may still be a reasonable accommodation. For example, if an employee has a doctor’s certification that they can return to work two weeks after their FMLA expires and the employee has indicated with certainty they can resume regular attendance, then the extended leave may be a reasonable accommodation in that case. It should also be noted, the Equal Employment Opportunity Commission (EEOC) takes the position that strict attendance policies providing that an employee is terminated after missing a certain amount of work violate the ADA and continues to argue extended leave should be a reasonable accommodation under the ADA. EEOC v. AT&T, Corp., No. 1:12-CV-00402, 2013 WL 6154563 (S.D. Ind. Nov. 20, 2013) (cross motions for summary judgment denied). Several courts disagree with the EEOC. See Samper v. Providence St. Vincent Med. Ctr., 675 F. 3d 1233 (9th Cir. 2012) (finding attendance to be an essential function of the job); Amsel v. Tex. Water Dev. Bd., 464 F. App’x 395, 400 (5th Cir. 2012) (concluding plaintiff was not qualified because he was not able to come to work and had not been in the office for months at the time of termination). In general, each inquiry is fact specific and requires its own interactive process. The interactive process should be well documented, and the fact that attendance is an essential function of the job will need to be proven in court if challenged.
For Texas counties and cities, certain positions involve serving the public throughout the day. The employees need to be in attendance to serve the citizens who come into the office. They cannot do their work from home. However, attendance may not be an essential function of the job for every employment position. Employers should perform a detailed analysis, similar to the one done by the court in Allen v. Babcock & Wilcox Technical Services Pantex, on whether each employee position requires attendance as an essential function of the job. If so, attendance should be listed on the job description as an essential function of the employment position. Attendance should also be listed as an essential function of the job in the attendance policies for applicable positions. Enforce the attendance policies uniformly and fairly, but be flexible when dealing with protected requests. Document every instance where an employee is counseled about his or her attendance including verbal warnings. Document everything that occurred during the interactive process to discuss a possible reasonable accommodation with the employee. Finally, consider your policies as a whole. If you provide flex time or permit some employees to work from home or telecommute, this may make it more difficult to establish for the rest of your employees that attendance is an essential function in your workplace.
*Vanessa A. Gonzalez is a partner at Bickerstaff Heath Delgado Acosta LLP and is Board Certified in Labor and Employment Law by the Texas Board of Legal Specialization.