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Seventh Circuit Finds that Inability to Perform Essential Job Function of Reliable Attendance Thwarts Employee's ADA Claim
By Amy Blaisdell on May 14, 2013 at 9:43 AM

Employee using time clock to punching in/out of workLate last year the Seventh Circuit reversed prior precedent and held that an associate who is minimally qualified must be reassigned to a vacant position as a reasonable accommodation in EEOC v. United Airlines, Inc.. 2012 U.S. App. LEXIS 18804 (7th Cir. 2012). That decision, coupled with the EEOC's focus on fixed-leave policies as violating the Americans with Disabilities Act (“ADA”), has caused much angst among employers as they struggle to square lean staffing models with the ADA’s duty to accommodate.

This month the Seventh Circuit took a more practical view when it affirmed dismissal of a former employee's ADA claims in a case in which the employee was unable to meet the requirement of providing regular, reliable attendance in Basden v. Prof'l Transp., Inc., 2013 U.S. App. LEXIS 9293 (2013). The employee’s attendance problems were apparently linked to a possible diagnosis of multiple sclerosis (“MS”). 

The employer provided around-the-clock ground transportation service. The plaintiff, who had been employed for less than a year as a dispatcher, had received numerous written warnings pursuant to the Company’s attendance policy for various absences, at least some of which were associated with possible MS. After she was suspended for three days for absenteeism, she submitted a request for a 30-day leave of absence. The Company's policy required an employee to be employed for one year before requesting a 30-day leave. The Company denied the leave and fired the employee, who in turn sued. The Seventh Circuit affirmed summary judgment in the employer's favor. In doing so the Seventh Circuit summarized prior case precedent holding,

An employer is generally permitted to treat regular attendance as an essential job requirement and need not accommodate erratic or unreliable attendance... A plaintiff whose disability prevents her from coming to work regularly cannot perform the essential functions of her job, and thus cannot be a qualified individual for ADA purposes... Her ability to come to work, or to otherwise perform the essential functions of her job, is examined as of the time of the adverse employment decision at issue... In response to an employer's motion for summary judgment, it is the plaintiff's burden to produce evidence sufficient to permit a jury to conclude that she would have been able to perform the essential functions of her job with a reasonable accommodation. 2013 U.S. App. LEXIS at *5-6 (Internal citations omitted).

The Court found that the employee’s evidence that medication improved her condition, that she had hoped for enough improvement to return to work regularly after leave, and that she subsequently had brief employment that was interrupted by a 2-week absence was insufficient to support a finding that she was able to come to work regularly at the time of her termination, or that her regular attendance could have been expected with the leave that she sought or with any other accommodation.

The takeaways here are as follows:

  1. Make sure you have updated your job descriptions to stress the importance of regular, reliable attendance, particularly if you have a 24-hour operation.
  2. When determining whether to extend leave as an accommodation, look closely at the individual's circumstances to determine the employee will likely be able to perform the essential functions of his/her job if the leave is provided. (Note that this case could have turned out much differently if the employee had evidence that her condition would have improved during the 30-day requested leave such that she could perform her job or another vacant position.)
  3. Despite the fact that this employer stuck to a hard and fast 30-day leave policy and it turned out okay, that will not always be the case. Inflexible leave and attendance policies expose organizations to individual claims and claims from the EEOC. Instead of adhering to inflexible leave policies, consider whether the requested leave will enable the employee to work. If it will not, then base your decision to deny leave on that factual finding.
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