Employer’s Good Deed Goes Unpunished — Reliable Attendance Is Essential Function Despite Prior Accommodation of Employee’s Absences

DMEC StaffLegislative Updates

Employer’s Good Deed Goes Unpunished — Reliable Attendance Is Essential Function Despite Prior Accommodation of Employee’s Absences

By Jonathan A. Roth

Jackson Lewis P.C.

While it’s true that acts of generosity sometimes backfire on those who offer them, the Court’s ruling in Higgins v. Union Pac. R.R. Co., No. 18-1902 (8th Cir. July 24, 2019) shows this is not always the case. In Higgins, the 8th Circuit affirmed summary judgment for Union Pacific — holding that regular, reliable attendance was an essential function of Higgins’ position despite the fact that Union Pacific accommodated Higgins’ poor attendance for over a decade.

Background

Higgins began working as a locomotive engineer for Union Pacific in 1976. Between 1989 and 1992, he suffered spine injuries while performing his job, which led to chronic back pain. In 1992, Higgins entered into a settlement agreement with Union Pacific in which he released his personal injury claims in exchange for payment and “the right to lay off whenever his back bothered him.”

For over a decade, Higgins had a high number of missed shifts — referred to as lay-offs — due to his chronic back pain. Between 2004 and 2014, Union Pacific sent Higgins multiple letters admonishing him for his poor attendance. Despite these warnings, Higgins’ poor attendance continued.

In 2014, Higgins’ doctor submitted information providing that Higgins’ back condition was the same as it was when he returned to work in the early 1990s and recommended that Union Pacific continue “providing at least 24 hours off between shifts.” In December 2014, Union Pacific determined that Higgins’ restrictions prevented him from performing his essential job functions, and Higgins was not allowed to return to work.

Higgins then sued Union Pacific for disparate treatment and failure to accommodate under the Americans with Disabilities Act (ADA).

8th Circuit Decision

Affirming summary judgment for Union Pacific, the 8th Circuit ruled that Higgins’ ADA claims failed because regular attendance was an essential function of the engineer position, and Higgins was unable to perform that essential function with or without a reasonable accommodation.

The Court explained that “regular and reliable attendance is a necessary element of most jobs,” and found ample evidence it was essential in this case, including (1) Union Pacific’s job description for the engineer position that listed reliable attendance as an essential job function; (2) Union Pacific’s attendance policy, which required employees to be available to work their assignment when scheduled; and (3) Union Pacific’s repeated warnings to Higgins that his attendance was unacceptable.

The fact that Union Pacific previously accommodated Higgins’ back problems by allowing him to miss a large percentage of his shifts did not create a material question of fact regarding whether job attendance was an essential function. The Court rejected Higgins’ argument that his 1992 settlement agreement, which allowed him to lay off as necessary, superseded Union Pacific’s attendance policy, at least as applied to him. The Court explained the agreement is “best characterized as an agreement to accommodate Higgins’ chronic back pain rather than an admission that job attendance is not an essential function.”

The Court also rejected Higgins’ argument that his proposed accommodations — laying off as necessary and receiving 24 hours of rest between shifts — were reasonable. The fact that Union Pacific previously accommodated Higgins’ back pain by allowing him to miss a large percentage of his shifts did not create a material question of fact as to the reasonableness of these requested accommodations. The Court explained that if an employer “bends over backwards to accommodate a disabled worker,” the employer “must not be punished for its generosity.”

Takeaway

Higgins reinforces the 8th Circuit’s position that regular, reliable attendance is an essential function of most jobs. This decision illustrates that a job description identifying attendance as essential, an attendance policy, and enforcement of the attendance policy are strong evidence that attendance is an essential function. While the Court did not “punish” Union Pacific for its prior efforts to accommodate Higgins, employers should tread carefully in such situations because, depending on the circumstances, a pattern of excusing absences could be viewed as evidence that regular attendance is not an essential job function.

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