Employment Law Information Network
All Things Labor and Employment Law
An employer’s past leniency in applying and enforcing its attendance policy did not contradict the employer’s later position that regular worksite attendance was required for employment, the U.S. Court of Appeals for the Fifth Circuit has held. Weber v. BNSF Railway Co., No. 20-10295 (5th Cir. Feb. 24, 2021).
This
he Sixth Circuit previously explained in Hostettler v. College of Wooster, 895 F.3d 844 (6th Cir. 2018) that regular, in-person attendance is not a per se essential function of every job. Rather, employers must tie time-and-presence requirements to the specific job at issue. In Popeck v. Rawlings Co., LLC, No. 19-5092 (6th Cir. Oct. 16, 2019), the Court ruled that Rawlings showed regular, on-site attendance was an essential function of Popeck’s auditor job, and Popeck was not a qualified individual under the Americans with Disabilities Act (“ADA”) because she could not perform this essential function.
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.
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).
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”).
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.
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.
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.
