An employee who accrued more than 7 weeks’ worth of unscheduled absences during her 50-week probationary period was not entitled to job protection under federal disability law, an appeals court has ruled.
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The Rehabilitation Act of 1973—the public-sector version of the Americans with Disabilities Act (ADA)—protects only individuals who are qualified to perform the essential functions of their job, with or without an accommodation, the 4th U.S. Circuit Court of Appeals explained in Works v. Berryhill, No. 16-1184 (April 26, 2017). And if an employee whose duties must be performed on site can’t regularly attend work, then she isn’t qualified for the job, the court concluded.
Facts of the Case
“Amaris,” an individual with a seizure disorder, began working for the Social Security Administration (SSA). During her first few weeks on the job, her supervisors made clear that her performance was not meeting their expectations, according to court documents. She also suffered several seizures during that period and took about 326 hours of leave, some of which were related to her disability.
Eventually, the SSA fired her, citing poor performance related to excessive socializing and personal phone calls. It also noted, however, that because the agency requires “continuous work processing,” it is essential that employees report to work regularly and perform their duties. “Your actions are unacceptable because when you have been out on unscheduled leave, management cannot depend on you being available to accept and perform the assignments expected,” it said, according to court documents.
Amaris sued, alleging disability discrimination. A lower court judge, however, dismissed her claims, finding that because of Amaris’ excessive absenteeism, she could not perform the essential functions of her job and was not entitled to job protection.
Appeals Court Weighs In
On appeal, the 4th Circuit (which covers Maryland, North Carolina, South Carolina, Virginia and West Virginia) agreed that Amaris was not qualified to perform her job. By her own admission, she could not receive or perform assignments unless she was on site. And during the 50-week probationary period, she missed more than 7 weeks of work.
Also, despite the employer authorizing all of her requested leave, her attendance record did not improve. “Thus, even after taking substantial medical leave to accommodate her disability, Amaris was unable to reach a point at which she could regularly attend work and perform her assignments as a management assistant,” the appeals court said.
Amaris’ inability to report to work on a reliable basis directly contributed to her inability to perform her job duties, the court found. Therefore, she was not a qualified individual with a disability, as required by the law, the court concluded, affirming the lower court’s ruling.
Employer Takeaway
Whether “attendance” can be an essential job function under the ADA has been the subject of much debate. The U.S. Equal Employment Opportunity Commission (EEOC) says that it cannot be an essential function, but it can be a conduct rule if it is uniformly applied, job-related, and consistent with business necessity.
Several courts, however, disagree. The 5th Circuit (which covers Louisiana, Mississippi, and Texas) for example, held that regular attendance is an essential function of an airline reservationist (Willi v. American Airlines, 288 Fed. Appx. 126 (5th Cir. 2008)). The 9th Circuit (which covers Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon, and Washington) reached the same conclusion in a case involving a NICU nurse (Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012).
The distinction is important because the ADA never requires that essential functions be removed as an accommodation. The law can, however, require exemptions from conduct rules. Therefore, in the EEOC’s view, employers always must consider whether leave, telework, or a flexible schedule—or any other accommodation—could be reasonable.
 Kate McGovern Tornone is an editor at BLR. She has almost 10 years’ experience covering a variety of employment law topics and currently writes for HR Daily Advisor and HR.BLR.com. Before coming to BLR, she served as editor of Thompson Information Services’ ADA and FLSA publications, co-authored the Guide to the ADA Amendments Act, and published several special reports. She graduated from The Catholic University of America in Washington, D.C., with a B.A. in media studies. |