Is Attendance at Work Truly Essential Under the ADA?

By Eric B. Meyer

The regulations to the Americans with Disabilities Act include a non-exhaustive list of reasonable accommodations that may apply to allow an employee with a disability to perform the essential functions of the job.

The list includes:

  • Job restructuring;
  • Part-time or modified work schedules;
  • Reassignment to a vacant position;
  • Acquisition or modifications of equipment or devices;
  • Appropriate adjustment or modifications of examinations, training materials, or policies;
  • The provision of qualified readers or interpreters.

There’s also a catchall: “Other similar accommodations for individuals with disabilities.”

Attendance may be essential – or maybe not.

But here’s the thing: There really is no one size fits all.

For example, remember the Ford Motor Company case (EEOC v. Ford Motor Company). That’s the one where the employee wanted to be able to telecommute as a reasonable accommodation for her disability. The company said no, because it felt that being in the office was an essential job function. And a full panel for the Cincinnati-based Sixth U.S. Circuit Court of Appeals agreed.

Earlier this Summer, the U.S. Circuit Court of Appeals for the District of Columbia reached the same conclusion in Doak v. Johnson. In Doak, the plaintiff’s disability caused her to work a very unpredictable schedule. The court acknowledged that a “come as you please” work schedule is not automatically an undue burden on an employer.

Indeed, the regulations contemplate a modified work schedule. However, in this particular case, the evidence the employer presented to the court established that regular attendance at work was an essential job function.

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Ms. Doak could not be consistently present in the office to participate in interactive, on-site meetings during normal business hours and on a regular basis. And, because the ADA only protects “qualified individuals” (i.e., those who can perform the essential functions of the job with or without accommodation), the employer was entitled to summary judgment.

How to establish that attendance is essential

Courts should defer to the employer on what job functions are essential.

That said, and hopefully you never have to address this issue with a court, but if you do, make sure that your job descriptions are up to date, and accurately reflect the job duties and responsibilities of your employees.

Get input from employees and supervisors. If attendance at work is essential, and that’s in your job description, that’s Exhibit A on a failure-to-accommodate claim under the ADA.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.

You know that scientist in the action movie who has all the right answers if only the government would just pay attention? Eric B. Meyer, Esq. gets companies HR-compliant before the action sequence. Serving clients nationwide, Eric is a Partner at FisherBroyles, LLP, which is the largest full-service, cloud-based law firm in the world, with approximately 210 attorneys in 21 offices nationwide. Eric is also a volunteer EEOC mediator, a paid private mediator, and publisher of The Employer Handbook (www.TheEmployerHandbook.com), which is pretty much the best employment law blog ever. That, and he's been quoted in the British tabloids. #Bucketlist.

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