One of the most troubling issues faced by human resource professionals is how to address an employee with a disability that impacts their ability to report for work.  A good example is an employee who suffers from episodes of depression that affect the employee’s ability to come to work.  It is almost impossible to challenge that type of condition as not being a disability so the employer needs to figure out how to accommodate the employee without creating a workplace morale problem. 

The issue normally focuses around the balance between the duty to accommodate an employee with a disability and the requirement of regular attendance as an essential function of the employee’s job.  Many cases have held that regular attendance is a proper and reasonable essential function for almost all positions.  The debate really focuses on what type of an accommodation does the employer have to make in order to allow the employee to continue to work when the employee needs additional time off.  This most often arises when an employee has exhausted all family medical leave and even short-term disability leave provided as a benefit to employees.

In a recent decision by the Sixth Circuit Court of Appeals, the Court of Appeals offered some guidance to employers.  The Court held that a request for a flexible start time and ten minute breaks every two hours was not a reasonable accommodation for the employee who suffered from depression and anxiety and needed time off to calm down after anxiety attacks.  The Court of Appeals recognized that regular attendance at work was an essential function for the employee working in a customer service position which involved answering phone calls from telephone service customers.  The Court of Appeals also found the request for a flexible start time and multiple breaks was not reasonable because the anxiety attacks were unpredictable and could not be attached to a fixed work schedule.  The employee also asked for more time away from work after the employee exhausted all available leave time.  The Court found this was not a reasonable accommodation because the employee and her physician could not give a specific time when the employee would be able to return to work.

Every case of reasonable accommodation requires an interactive process with the employee and a review on an individual basis.  In this case, the Court held that the accommodations being requested by the employee were not reasonable which provides some support for limitations on the type of accommodations that need to be given to an employee with a disabling condition that affects attendance.  Employers must always be careful to do a separate analysis in each case depending upon the condition of the employee.