Attendance may be an essential job function under the ADA. But, how do you know?


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. They include 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. 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 Sixth Circuit agreed.

Earlier this Summer, the DC Court of Appeals reached the same conclusion in Doak v. Johnson (opinion here). 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. 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.

Image Credit: Wolfgang Lonien on Flickr

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