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Total Articles: 6

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.

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.

Yes! Regular, Reliable Attendance at Work IS Important under the ADA After All!

No matter what position the EEOC might take, I'll always take the position that an employee's regular, reliable attendance is an essential function of the job. So, when an employee wants to arrive at work at any time, without any repercussions, it's not a reasonable accommodation under the ADA. And I have a recent court case to prove it.

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.

Requiring Employees to Explain Health-Related Absences May Be Unlawful

In E.E.O.C. v. Dillard’s, Inc., a federal district court in California ruled that a retail chain’s attendance policy, which required employees to provide a doctor’s note identifying the nature of a health-related absence for such absences to be excused, violated 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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