ADA & Disabilities, Leave Management, Policy, and Compliance

Was Attendance an Essential Job Function for AT&T Customer Service Rep?

by James D. Cockrum

An AT&T customer service representative (CSR) recently filed a lawsuit against her employer citing disability discrimination, but the employer, citing attendance as an essential job function of her position, claimed she was terminated for her frequent absences. Was the employee discriminated against? The 6th Circuit Court of Appeals—which covers Kentucky, Michigan, Ohio, and Tennessee—has the answer.Kentucky

Facts

“Pam” worked as a CSR for AT&T. She worked in a call center, and her job duties included answering calls and assisting customers with technical and billing issues. Under AT&T’s attendance policy, CSRs who accrued eight or more attendance points were subject to termination.

Absences that occurred while an employee was on short-term disability (STD) or Family and Medical Leave Act (FMLA) leave or as part of an Americans with Disabilities Act (ADA) accommodation did not result in any points under the attendance policy. AT&T used a third-party administrator to gather information and render eligibility decisions for FMLA and STD leave.

Pam suffered from depression and anxiety attacks that caused lengthy absences. She did not work from January 2013 to July 2013, and she worked only a few days in August, November, and December 2013. During the absences, she was granted a combination of FMLA and STD leave. By the end of November 2013, however, she had exhausted her FMLA leave and could not accrue more because she had worked less than 1,250 hours in the previous 12 months.

In February 2014, Pam met with a supervisor to discuss her attendance. Pam requested accommodations of “flexible scheduling and additional breaks.” (CSRs received two scheduled 15-minute breaks, a lunch break, and restroom breaks “as needed.”) She was evaluated by a nurse practitioner, who estimated that she would need to work 25 fewer hours per month until at least August 2014, a 10-minute break every two hours, and an undefined “flexible start time.”

Various extensions of STD leave protected Pam’s absences until May 27, 2014. In May 2014, she was attending therapy sessions for 5 hours per day, which were expected to last until at least June 13. Medical information submitted by her psychiatrist indicated that she was “not fit for work.”

Another therapist indicated she could return to work on June 30. Pam, however, reported that she could not return until the end of an outpatient treatment program 8 weeks later. On June 20, additional information showed the treatment program would continue until at least August 6.

After May 27, 2014, the information provided by Pam failed to satisfy the administrator that she qualified for additional extensions of STD benefits. Although Pam appealed the denial of the extensions of STD benefits, even a successful appeal would have left her with 16 accrued points under AT&T’s attendance policy. AT&T advised Pam that if she could not return by June 30, she would be terminated. When she did not return, AT&T terminated her.

Pam filed a lawsuit claiming AT&T failed to accommodate her disability, discriminated against her because of her disability, and retaliated against her for requesting accommodations.

Courts’ Decisions

Both the trial court and the court of appeals rejected Pam’s claims. Both courts agreed that regular attendance constituted an essential job function and that she could not perform the “regular attendance” duty with or without the accommodations she proposed.

She acknowledged that even if she were given additional scheduled breaks and flexible start times, she would still need to log off and take breaks if she suffered an anxiety attack. Moreover, the most recent medical information indicated she would be absent 30 days out of a 57-day period.

While additional leave can be a reasonable accommodation, the court noted that AT&T provided more than a sufficient amount of leave and was not required to provide more. The court noted that an employer is not required to hold a job open indefinitely for a disabled employee, particularly when a significant amount of leave has already been provided and there are “no clear prospects for recovery.” In this case, even an estimated return date failed to justify additional leave. The court stated:

A physician’s estimate of a return date alone does not necessarily indicate a clear prospect for recovery, especially where an employee has repeatedly taken leaves of unspecified duration and has not demonstrated that additional leave will remedy her condition.

Because the court determined that excessive absenteeism constituted a legitimate reason for Pam’s termination, her retaliation and discrimination claims failed. Other than personal speculation that other employees were treated differently, she offered no evidence to oppose the argument that her attendance problems justified her termination. Williams v. AT&T Mobility Services, LLC, ___ F.3d ___, Civil Action No. 16-6078 (6th Cir., January 27, 2017).

Bottom Line

This case helps employers with two related problems. First, it shows that regular attendance is a legitimate job requirement after recent cases potentially weakened that position. More important, it helps employers that face repeated, inaccurate “return to work” statements from physicians who cannot truly determine an employee’s return date. Reasonable additional leave does not mean undeterminable additional leave.

For more information about this topic, please contact Jim Cockrum, an editor of Kentucky Employment Law Letter, at jcockrum@fbtlaw.com.