The Northern District of Texas has issued a fantastic opinion for employers concerning a recurring question under the ever evolving Americans with Disabilities Act (“ADA”). Specifically, whether attendance can be an essential job function. This Court has answered that question in the affirmative. In Allen v Babcock & Wilcox Technical Services Pantex, LLC (October 9, 2013, Robinson, M), the plaintiff employee was diagnosed with a disease that qualified as a disability under the ADA. As the plaintiff’s condition steadily worsened over the years, she missed almost 200 days of work over the course of 14 months. Eventually, the plaintiff’s doctor certified that she would not return to work.
In granting the employer’s motion for summary judgment on the plaintiff’s ADA claim, the Court concluded that consistent attendance at the plaintiff’s job was an essential function of it. Because the plaintiff could not satisfy that essential function, the plaintiff was not a qualified individual with a disability and, therefore, the plaintiff’s ADA claim failed as a matter of law. The employer convinced the Court of the essential nature of the plaintiff’s attendance at work by establishing four undisputed facts:
(i) the plaintiff was required to interact on a daily basis in person with customers and trainees;
(ii) the plaintiff was required to meet certain long-term deadlines that were jeopardized by her absences;
(iii) the plaintiff was required to implement programs on a daily basis; and
(iv) the employer was forced to hire another employee to fill the plaintiff’s position during the period when the plaintiff was absent for almost 200 days.
In analyzing these facts, the Court also decided that indefinite leave is not a reasonable accommodation as a matter of law – another great ruling for all employers in Texas.
A few key takeaways from this decision. Don’t view the case as an absolute green light to conclude that attendance is always an essential function of all of your company’s positions. While that very well may be the case, you should also perform a detailed, factual analysis, like the Court did here, concerning the actual essential functions of the positions in question. Also, you should maintain job descriptions that identify each position’s essential functions. If attendance is indeed an essential function to the positions in question, be sure to include, and describe, it as such in them. Because it seems so obvious for most positions, employers often overlook including attendance as an essential function in their job descriptions. Be sure to also describe attendance as an essential function in your attendance policies where applicable. You should also engage in good faith in the interactive process when your employees request an accommodation concerning their attendance. And, keep in mind, that providing flex time and permitting some employees to work from home or telecommute may make it more difficult to establish for the rest of your employees that attendance is an essential job function in your workplace.