Appellate Courts Agree: Regular Attendance Is Essential Function of Most Jobs

DMEC StaffLegislative Updates

Appellate Courts Agree: Regular Attendance Is Essential Function of Most Jobs

By Jonathan A. Roth

Jackson Lewis P.C.

Recent decisions from the 2nd, 5th, and 8th Circuit Courts of Appeals exemplify the growing consensus among courts that even employees with a disability are generally required to comply with company attendance policies. While employers may need to provide leave as a reasonable accommodation, many courts generally agree that regular, reliable attendance is an essential function of most jobs within the meaning of the Americans with Disabilities Act (ADA).

In Trautman v. Time Warner Cable Tex., LLC, No. 18-50053 (5th Cir. Dec. 12, 2018), Vitti v. Macy’s Inc., No. 17-3493 (2nd Cir. Dec. 21, 2018), and Lipp v. Cargill Meat Sols. Corp., No. 17-2152 (8th Cir. Dec. 19, 2018), the 5th Circuit, 2nd Circuit, and 8th Circuit each found that employees claiming disability discrimination were lawfully terminated for attendance policy violations and affirmed summary judgment in favor of the employer.

In Trautman, Time Warner’s attendance policy provided employees could be terminated for exceeding 112 hours of unexcused absences in a rolling 12- month period. The evidence showed that the plaintiff accrued unexcused absences totaling over 200 hours in less than a 12- month period. Time Warner submitted evidence that the plaintiff was treated similarly to other non- disabled employees along with evidence of prior accommodations of the plaintiff, including medical leave, as evidence that it lacked discriminatory animus. Based on this evidence, the 5th Circuit affirmed summary judgment for Time Warner, concluding that the plaintiff was terminated for violating Time Warner’s attendance policy and not because of an alleged disability.

Likewise, in Vitti, Macy’s terminated the plaintiff for excessive tardiness and absences in violation of its attendance policy after multiple warnings. The 2nd Circuit concluded that the plaintiff was not qualified for her job working in the Macy’s cosmetics department because of her unreliable attendance record. Alternatively, the 2nd Circuit held there was no genuine dispute of material fact that the plaintiff was terminated for violating Macy’s attendance policy and not because of an alleged disability. While the plaintiff argued that she was terminated because of her disability based on the close temporal proximity between her excused medical leave and her termination, the court rejected this argument because Macy’s began progressively disciplining the plaintiff prior to her medical leave.

Similarly, in Lipp, Cargill had an attendance policy that provided for termination after nine occurrences. The evidence showed that the plaintiff was terminated after accruing 195 occurrences, many of which were related to a multi-month leave that was unrelated to her alleged disability. The 8th Circuit affirmed summary judgment for Cargill without reaching the issue of whether the plaintiff was terminated for a legitimate, non-discriminatory reason, concluding the plaintiff could not even show that she was qualified for her job based on her poor attendance. The 8th Circuit found regular attendance was clearly an essential function of the plaintiff’s job — which required her to assemble and stack boxes on a production line — as evidenced by Cargill’s attendance policy. The 8th Circuit concluded that the plaintiff was not meeting the essential function of attendance as evidenced by her 195 absences over a period of less than a year.

These recent appellate decisions show that unreliable attendance can render an employee unqualified for his or her job and that violating an attendance policy can be a legitimate, non- discriminatory reason for termination. However, whether an employee who has missed or needs to miss a significant amount of work (either because of a block of leave or due to sporadic absences) is nonetheless a qualified individual is a fact- intensive question that often depends on numerous factors. Thus, employers should tread carefully and seek guidance from legal counsel when considering adverse action against an employee with irregular, unreliable attendance related in whole or in part to a potential disability.

***This article originally appeared on the Jackson Lewis’ Disability, Leave & Health Management blog and was reposted on the DMEC website with their permission.***