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Court: Regular Attendance Is an Essential Job Function

Americans With Disabilities Act Training

Americans with Disabilities Act (ADA) compliance can be challenging, as employers attempt to decipher whether a specific situation falls under the definitions of the law, such as when they must provide accommodations to an employee with a disability; what type of accommodation is ADA-compliant; and what functions of a job are considered "essential." Fortunately, a federal court in Florida recently provided some guidance with respect to whether an employee's regular, reliable attendance is an essential function of the job.

In Daniel Mecca v. Florida Health Services Center, Inc., the plaintiff (Mecca) suffered from panic attacks and anxiety. Initially, the defendant's employer, Tampa General Hospital (TGH),attempted to work with Mecca by changing his schedule and granting his requests under the Family and Medical Leave Act (FMLA) for these medical conditions. In 2010, Mecca returned from several weeks of FMLA leave with orders from his doctor limiting him to three days of work per week. Mecca acknowledged that this request would essentially allow him to leave whenever he suffered anxiety or panic attacks. Shortly thereafter, Mecca resigned from his position and then sued the hospital for claims including discrimination and retaliation under the ADA in failing to grant him leave to accommodate his disability and for interference and retaliation under the FMLA.

TGH recognized Mecca as a person with a disability, but argued he was not qualified for ADA protection because he was unable to perform the essential functions of his position, which included regular attendance. Additionally, TGH argued that his requested accommodation for sporadic and indefinite leave was not a reasonable accommodation.

The court agreed, stating that regular attendance is an essential function of Mecca's job. Additionally, leave had already failed to help Mecca maintain a regular schedule and there was no indication that Mecca's medical conditions would improve in the foreseeable future. The court held that the law does not require employers to carry the burden of such uncertainty, and that the leave was therefore not a reasonable accommodation in this situation. The court also dismissed Mecca's FMLA claim because he had never been denied any requested leave, and he failed to show any discriminatory motive in an adverse employment action.

Assessing whether an employee qualifies as disabled, or whether an accommodation is ADA-compliant, is essentially fact specific. Employers should consider — on a case-by-case basis — (1) whether showing up for work on a predictable basis is essential for a particular position; and (2) whether accommodating an employee will ensure his or her regular attendance in the immediate future. Depending on the situation, the ADA may still require employers to be somewhat flexible with their attendance policies.

If regular, dependable attendance and punctuality are truly essential to a particular position, employers should include it in a written job description. Employers are also advised not to immediately deny accommodation requests, but to engage in an interactive process with employees to determine whether they can make a reasonable accommodation without undue hardship.

While regular attendance can undoubtedly be an essential function of many jobs, the ADA can present a variety of legal issues when employers are dealing with employee attendance and leave situations. It is also important to understand the interaction between the ADA and FMLA and how they overlap. It's crucial that employers carefully consider every accommodation or leave request made by employees suffering from a disability or serious health condition.

WeComply's online compliance courses on the Americans with Disabilities Act and the Family and Medical Leave Act help employers avoid violations by teaching employees about the laws' requirements and their role in ADA and FMLA compliance.

Categories: Discrimination & Harassment Compliance
Tags: Americans with Disabilities Act, Family and Medical Leave Act

ACC Alliance PartnerProskauer
Thomson Reuters