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Total Articles: 22

School Board Not Liable for Disciplining Disabled Educator's Excessive Absenteeism or Denying Her Leave Requests

Since Congress passed the Americans with Disabilities Act (ADA) in 1990 and state legislatures enacted their own protections requiring employers to accommodate disabled workers, courts have grappled with the reasonableness of accommodating an employee’s excessive absenteeism caused by a disability. In Barbabosa v. Board of Education of the Town of Manchester, the Connecticut Appellate Court faced that question, holding on April 23, 2019, that attendance was an essential function of Barbabosa’s job and, therefore, her employer was not liable for either disciplining her for excessive absenteeism or denying her requests for extended intermittent leave.

Being on Call 24/7 an Essential Job Function Under ADA, 5th Circuit Rules

The ability to be on call 24 hours a day, seven days a week was an essential job function under the Americans with Disabilities Act (ADA) for a law enforcement cadet, a federal appellate court has ruled.

Share and Share Alike: Sharing Essential Job Functions May Qualify as a Reasonable Accommodation

On April 1, 2019, the United States District Court for the Northern District of Illinois denied summary judgment in an Americans with Disabilities Act (ADA) case, determining that occasionally excusing employees from performing certain job functions does not render the function nonessential and finding that sharing tasks may be a reasonable accommodation. Schiller v. Northern Suburban Special Recreation District, No. 17 C 8514.

Hold The Phone...Full-Time Attendance Is Not An Essential Function Of The Job!

Understandably, many employers often maintain full-time attendance is an essential function of the job. In some ways this thinking makes sense – if employees are not present at work how can they do their job? But, with improvements in technology and the opportunity to work remotely or on a reduced schedule, savvy employers know this topic is no longer so cut and dry.

Fourth Circuit Reaffirms That Regular, Reliable Attendance Is Essential Function Of Most Jobs

The Fourth Circuit has reaffirmed its position that regular and reliable attendance is an essential function of most jobs. The Court held that an employer did not violate the Rehabilitation Act by taking adverse action against an employee because of her attendance issues—even though they were caused by her mental illness. Hannah P. v. Coats, No. 17-1943 (4th Cir. Feb. 19, 2019).

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

Recent decisions from the Second, Fifth, and Eighth Circuit Courts of Appeals exemplify the growing consensus amongst 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”).

Employers Asserting “Essential Job Function” Defense Need a Clear Job Description.

Just a few months ago, we wrote about a case where a federal district court denied summary judgment to an employer who had asserted that attendance at work was an essential job function. The Court held that although regular attendance at work was set out in the job description, that was not enough to obtain summary judgment. In a slight twist, today we discuss a case in which the court focused on the adequacy of the job description itself and found it lacking. For that reason and others, it denied the employer’s motion for summary judgment.

Employers Must Have Duties Based Reasons to Support the Assertion that Full-Time Attendance Is an Essential Job Function

Teenagers are not the only ones dissatisfied when their pleas of “why” are met with a “because I said so.” It turns out that courts of appeal do not care for it either.

Is full-time presence at work an essential function of a job? One federal circuit says No.

The Americans with Disabilities Act (ADA) requires that employers reasonably accommodate employees with disabilities, including allowing modified work schedules when appropriate. One federal appellate court has addressed that issue, overlaid with the question of accommodating an employee’s postpartum depression after FMLA leave, and has held that a lower court wrongly concluded that full-time presence was an essential function of the employee’s position. Hostettler v. College of Wooster, 6th Cit., No. 17-3406, July 17, 2018.

Overtime Can Be An Essential Job Function

A recent decision from the District Court for the District of Nebraska serves as a reminder that overtime can be an essential job function. See McNeil v. Union Pac. R.R._ 2018 U.S. Dist. LEXIS 85250. On May 21, 2018, Union Pacific Railroad Company’s (“Union Pacific”) motion for summary judgment was granted and the Court determined that it did not have to grant an emergency dispatcher’s request to be exempt from overtime to accommodate her depression and anxiety because working overtime in emergency situations was an essential element of her job.

Absence Does Not Make the Heart Grow Fonder: Texas Court Holds Attendance Issues Can Preclude Disability Claims

In Wolf v. Lowe’s Companies, Inc., No. 4:16-CV-01560 (March 13, 2018), United States District Judge Alfred H. Bennett of the Southern District of Texas granted Lowe’s motion for summary judgment on a former sales employee’s claims under the Americans with Disabilities Act (ADA) for disability discrimination and failure to accommodate, as well as her claim under the Family and Medical Leave Act (FMLA) for retaliation. The court held that the plaintiff had failed to establish a prima face case under the ADA because her excessive absenteeism and tardiness prevented her from being qualified to perform her job. Additionally, temporal proximity between the plaintiff’s use of FMLA leave and her discharge was insufficient to establish a prima facie case of retaliation.

Who decides whether a job function is “essential” for purposes of the ADA?

In a recent unpublished opinion, the 11th U.S. Circuit Court of Appeals issued a carefully considered and well-structured instruction for those who want to further understand the concept of “essential functions” of a position in cases under the Americans with Disabilities Act (ADA). Bagwell v. Morgan County Commission, No. 15-15274 (11th Cir., January 18, 2017). There, the Court made it clear that an employer sets the essential functions of a position, based on business needs.

Company’s work-from-home policy did not replace essential function of regular, predictable attendance.

A policy allowing an individual to work from home does not vitiate the fact that punctuality and predictable attendance are essential functions of a position. According to the 7th U.S. Circuit Court of Appeals, an employee’s ongoing tardiness – although numerous modifications had been made to her schedule and workload to allow flexibility in light of the individual’s multiple sclerosis (MS) – supported the employer’s argument that the employee was not “qualified” for the job, and led to summary judgment in the employer’s favor. Taylor-Novotny v. Health Alliance Medical Plans, Inc. 7th Cir., No. 13-3652, November 26, 2014.

Reasonable accommodation sought by disabled employee must enable employee to perform 'essential functions' of original job.

In an unpublished opinion, the6th U.S. Circuit Court of Appeals has held that an employee who was unable to complete the functions of her job while on part-time duty could not subsequently claim that ongoing part-time work was a reasonable accommodation for her disability. White v. Security First Associated Agency, Inc.,et al, 6th Cir., No. 12-1287, June 28, 2013.

Written job description did not sufficiently indicate the essential nature of night shift in emergency dispatcher position

One federal district court has ruled that a night-shift emergency dispatcher with diabetes and hypertension, whose doctor stated that the individual’s health would be improved by working day-shifts, could proceed on his claim that an employer’s refusal to allow him to work days violated the Americans with Disabilities Act (ADA). Szarawara v. County of Montgomery, EDPA Case No. 12-5714, June 27, 2013. In denying the employer’s motion to dismiss at the initial stage of the litigation, the court rejected the argument that language in a job description requiring employees to be able to work “various shifts” made working the night shift an essential function of the job. In addition, the court refused to accept the employer’s argument that the employee should have tried other ways to improve his condition before seeking to change his night-shift schedule.

Employer's judgment about what constitutes an essential job function carries substantial weight.

Is the ability to be licensed to drive a commercial vehicle an “essential function” of a warehouse manager’s position, even though that manager rarely is required to drive? According to the 8th U.S. Circuit Court of Appeals, that answer depends largely upon the job description developed by the employer, and not on the employee’s specific personal experience in the job. Knutson v. Schwan’s Home Service, Inc., 8th Cir., No. 12-2240, (April 3, 2013).

8th Circuit upholds jury's decision that if employee is prohibited by his doctor from engaging in the essential functions of his job, no accommodation is necessary.

The 8th U.S. Circuit Court of Appeals recently held that jury was justified in finding that an employer is not required to engage in an onsite evaluation to interactively create a reasonable accommodation for a disabled employee, if a treating physician’s restrictions would prevent that individual from performing those essential functions at all. Hohn v. BNSF Railway Co., 8th Cir., No. 12-1041, February 28, 3013.

Employer's Insistence That Worker Comply With Attendance Policy Is Not A Failure To Accommodate

In a case that "tests the limits of an employer's attendance policy," a federal appellate court recently upheld the dismissal of a lawsuit brought by a nurse who requested a waiver from her employer.

Issue: Employee's inability to work overtime is not a per se disability under the ADA.

The 4th U.S. Court of Appeals has dismissed an employee's lawsuit, holding that the individual's inability to work overtime hours was not a substantial limitation that would entitle him to the protections of the Americans with Disabilities Act (ADA). Boitnott v. Corning Incorporated, 4th Cir., No. 10-1769, February 10, 2012.

Hospitality: Cooking And Cleaning May Be "Essential Job Functions" Even For Managers.

A federal appeals court decision provides some significant insight into what courts may consider to be "essential functions" of restaurant managers, in a case that arose under the Americans with Disabilities Act (ADA). Richardson v. Friendly Ice Cream Corporation.

Medical intern unable to perform the essential functions of a first-year resident could not support ADA claim.

A medical intern who misdiagnosed patients (including mistakenly identifying a patient as deceased), prescribed inappropriate medications or incorrect dosages, and who was “extremely argumentative” with his supervisors and co-workers was unable to perform the essential functions of his job and therefore, according to the 4th U.S. Circuit Court of Appeals, was not a qualified individual with a disability for purposes of the Americans with Disabilities Act.

Attendance at Work is an Essential Function of the Job in Most Instances.

In an unpublished opinion, the 2d U.S. Circuit Court of Appeals has held that an employee of the New York City Department of Education could not establish a prima facie case of disability discrimination, because she could not prove herself to be “otherwise qualified” within the meaning of the Americans with Disabilities Act (ADA).
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