The Third U.S. Circuit Court of Appeals recently ruled that an employer can lawfully base a termination decision on excessive absenteeism even when the absences are due to a disability covered by the Americans with Disabilities Act (ADA). For the decision to withstand an ADA claim, regular attendance must be an “essential function” of the job when the absences are related to the employee’s disability.
HR Guide to Employment Law: A practical compliance reference manual covering 14 topics, including the Americans with Disabilities Act
Background
Joyce Miller began working for the University of Pittsburgh Medical Center (UPMC) as a surgical technologist in 1991. She contracted hepatitis C during her employment at UPMC and took three leaves of absence between 1999 and 2004 to obtain treatment. Her final treatment rendered the virus inactive, and she returned to work in November 2004.
From November 2004 to November 2005, Miller had 13 unscheduled absences. In April, after she had missed nine days of work during the previous 12 months, she received a verbal warning about her poor attendance. In June, she received a written warning for missing 10 days of work, and in August, she received a three-day suspension for missing 12 days of work.
In December, Miller received a five-day suspension, pending termination, for missing 13 days of work. She was terminated in December for excessive absenteeism in violation of UPMC’s “Absence and Tardiness” policy.
Miller filed claims for discrimination, retaliation, and failure to accommodate under the ADA. The district court noted that to prove an ADA claim, she had to show that she was an individual with a disability under the ADA, she was otherwise qualified to perform the essential functions of her job with or without reasonable accommodation, and she suffered an adverse employment action. The court found that she wasn’t able to perform the essential functions of her job because regular attendance and being on call were required in the surgical technologist position.
Americans with Disabilities (ADA) Compliance Manual
Court’s analysis
The Third Circuit agreed with the district court, noting that the “Responsibilities” section of Miller’s job description identified the responsibility to “take call and work shifts as required” as a “principal function” of the job. The appellate court found that attendance can constitute an essential function of a job, and it did in this case since part of the emergency room technician job was assisting during surgery performed in the hospital. Miller didn’t provide any evidence of a reasonable accommodation that would enable her to perform the essential function of attendance.
The court noted that even if Miller had proven she was able to perform the essential functions of her job, UPMC didn’t discriminate against her because her firing was consistent with its attendance policy. There was no evidence that the hospital treated her differently than any other nondisabled employee who had a similar record of absenteeism. Therefore, the appellate court affirmed the lower court’s finding that she couldn’t prove a claim under the ADA, and her lawsuit was dismissed.
Audio Conferences: Essential Function: Writing ADA-Compliant Job Descriptions
Bottom line
This case demonstrates the importance of having thorough descriptions of job responsibilities. If UPMC hadn’t had a written job description, it would have been much more difficult — perhaps impossible — for the court to find that regular attendance was an essential function of Miller’s job. This case also demonstrates that clearly communicated written attendance policies can help you defend against any kind of discrimination or wrongful termination charge when you have to fire an employee for habitual absenteeism or tardiness.