This week, to review what has and hasn’t changed under the amended Americans with Disabilities Act (ADA), we’re taking a look at a disability discrimination cases that deals with essential job functions and reasonable accommodation. Determining the truly essential functions of a job is often at the heart of a disability discrimination dispute. While many employers assume that showing up for work on time is an essential job function, things aren’t that simple under state and federal disability discrimination laws, as this case illustrates.
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Making the malls run on time
IPC International Corporation hired Josue Andujar to work as a security officer at a shopping mall it managed. Eventually, IPC promoted Andujar to lead safety officer at the mall. In that role, he was required to start work at 10:00 a.m. to guarantee that the mall was ready to open for customers. IPC’s management contract with the mall required security officers to work a specified number of hours each week.
Since birth, Andujar has suffered from cerebral palsy, which causes him lower back pain and difficulty walking. His back pain is more acute in the morning. After he wakes up, it typically takes 20 to 30 minutes for the pain to subside.
Andujar’s back pain sometimes made him late for work. When that happened, he would call another security officer to attend to his mall-opening responsibilities. Although his old boss was tolerant of his tardiness, his new boss wasn’t, even after Andujar told him that his cerebral palsy caused his late arrival at work.
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Absence of mall-ice?
Between February and July 2006, Andujar was tardy 18 times and was progressively disciplined for those infractions. Finally, in late July 2006, IPC fired him for his tardiness. The company offered to assign him to a different shift at a different location, but he declined, citing child-care issues and his difficulty navigating the stairs at the other location.
Andujar filed suit in federal court, claiming that IPC violated state and federal disability discrimination laws when it failed to excuse his tardiness and fired him. IPC countered by asking the court to dismiss his lawsuit without a trial because (1) his cerebral palsy didn’t render him disabled by law, (2) he wasn’t a “qualified individual” under the ADA because he couldn’t perform the essential functions of his position, (3) his requested accommodation was unreasonable, and (4) its accommodation offer (a later shift) was reasonable.
Time not on his side
In its decision, the court focused on the essential functions issue, which was centered on whether regular and timely attendance was an essential function of Andujar’s lead security officer job. The court compared the facts of this case to a similar case in which a court ruled that regular and timely attendance wasn’t an essential function for a data-entry employee whose arthritic condition had prevented him from starting work on time. In that case, there was no evidence that the employee had to be at work during specific hours of the day, and all that mattered was that he worked 7.5 hours per day.
In Andujar’s case, however, the court concluded that he had to be present at specific hours of the day because he had to prepare the mall for its 10:00 a.m. opening. He was responsible for unlocking the mall doors, turning on the elevators and music, and ensuring that tenants were open for business at 10:00 a.m.
Andujar argued that regular and timely attendance couldn’t have been an essential job function because his old boss excused his tardiness and because he could get others to cover for him when he was running late. The court responded that the old boss’ attitude about tardiness didn’t demonstrate that punctuality wasn’t an essential job function. And the court reasoned that the fact that Andujar got other security officers to perform his mall-opening duties when he was tardy was evidence of how essential those duties were.
Ultimately, the court ruled that Andujar’s arrival at work before 10:00 a.m. was an essential job function. Thus, it dismissed his case because his inability to perform that essential job function meant he wasn’t qualified for protection under Massachusettes and federal disability discrimination laws. As a result, the court chose not to fully address the reasonable accommodation issues raised in the lawsuit. Andujar v. IPC International Corporation (United States District Court, 2008).
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What constitutes an essential job function can vary a great deal from job to job and employer to employer. It would be a mistake to read this case as meaning that now punctuality will always be an essential job function. So long as it doesn’t pose an undue hardship, employers must continue to modify a disabled worker’s schedule when changes are requested as an accommodation.
Significantly, under the new ADA Amendments Act, IPC’s argument that Andujar wasn’t disabled would be futile. Fortunately for the company, the trial court agreed with an alternate theory of defense. The decision may be appealed, however, so we’ll keep you posted.
Timothy F. Murphy is a partner at the firm of Skoler, Abbott, & Presser. He can be reached at (413) 737-4753.