Bradley Arant Boult Cummings LLP

When considering a position’s requirements and responsibilities, most people would assume that attendance is a given. Before any other job duties can be fulfilled, an employee must actually come to work. However, since individuals increasingly perform their job duties away from their employer (think technology, work-at-home policies, virtual positions, etc.), attendance has slowly but surely become a regularly contested issue in disability discrimination cases. In Lipp v. Cargill Meat Solutions Corporation, the Eighth Circuit reiterates how critical attendance is in evaluating whether an individual with a disability is a qualified individual under the Americans with Disabilities Act.

Background

Sheena Lipp worked in Cargill’s meat and processing facility for almost twenty years. During that time, Lipp was diagnosed with an incurable lung disease, which made it difficult for her to walk, run, or otherwise exert herself physically. To ensure Lipp could maintain her position, Cargill accommodated all of her needs, including allowing time off for out-of-town appointments and during “flare ups” multiple times per year; ensuring Lipp only worked eight hours per day, five days per week, in an environment without dust or dirt; and providing Lipp with lifting assistance when she was required to move pallets.

In January 2014, Lipp began a nine-month, unplanned leave of absence to take care of her mother, who had her own significant health issues. This leave of absence violated Cargill’s attendance policy, which explicitly provided for progressive disciplinary action for unplanned absences. Unless they were on approved extended leave, employees were required to report their absences daily using Cargill’s automated call-in system. An employee would be charged one “occurrence” point for each unplanned absence and could accrue up to six occurrence points in a calendar year without disciplinary action. An employee’s seventh and eighth points would result in written warnings, and the ninth point would result in termination. Additionally, employees could be required to verify any absences from work. All verification had to be presented upon the first day the employee returned to work.

Rather than immediately terminating Lipp when she returned to work in October 2014, Cargill informed her that she had accumulated 194 occurrence points and placed her on “Last Chance” for attendance. Consequently, any call-ins, tardies, or early dismissals without authorization would result in termination. Two weeks after returning to work, Lipp called in to report she would be absent. When she returned to work without providing medical verification for her absence, Cargill terminated Lipp under the attendance policy.

Lipp filed an action alleging intentional discrimination and failure to accommodate under the Iowa Civil Rights Act and the ADA. Analyzing both statutes in the same manner, the district court ultimately granted summary to Cargill on all claims. Lipp appealed.

Eighth Circuit Affirms Summary Judgment Ruling

On appeal, the Eighth Circuit held that Lipp had no direct evidence of disability discrimination and could not establish a prima facie case of disability discrimination because she was not a qualified individual with a disability. Specifically, “Lipp ha[d] not demonstrated that at the time of her termination she could regularly and reliably attend work, an essential function of her employment.” In explaining that attendance was an essential function of Lipp’s job, the Eighth Circuit emphasized the language of Cargill’s written attendance policy, which stated that “punctuality and regular attendance [was] crucial for efficient plant operations, safety, and morale.” The Eighth Circuit also noted that all of Lipp’s listed activities in Cargill’s written job description required being present on Cargill’s premises.

When Lipp surprisingly argued that her 194 absences were not excessive, the Eighth Circuit ruled that her 194 unauthorized absences “far exceeded” what qualified for termination under Cargill’s policy. Even more importantly, the Court added that “persistent absences from work can be excessive even when the absences are with the employer’s permission.”

Regarding Lipp’s failure to accommodate claim, the Eighth Circuit held that the ADA did not require Cargill to provide an unlimited absentee policy or eliminate the essential functions of Lipp’s job to accommodate her. Lipp’s desired accommodation—additional absences without timely medical verification and almost immediately following 194 days of unplanned absences—was not one that would enable her to perform the essential function of regular and reliable attendance. On the contrary, it would relieve her of that function. The Eighth Circuit highlighted how generous Cargill had been despite Lipp’s excessive absenteeism and explained that a denial of summary judgment would punish Cargill for giving Lipp another chance instead of promptly terminating her before she returned to work in October.

Learning from Cargill

This case demonstrates the necessity of engaging in the interactive process, working diligently with disabled employees to maintain their employment, and communicating job requirements clearly and continuously. When confronting issues regarding absenteeism, keep these points in mind:

  • Make sure employees understand both your attendance policy and progressive discipline policy. Explain them verbally and give them a written copy. When absenteeism is adversely impacting the work environment, reiterate the policies (and maybe give the employee another copy).
  • Review the employee’s essential job functions, and be able to explain why attendance is essential for his or her position. Discuss the impact on other employees, customers and/or the organization as a whole. It is helpful if written job descriptions make clear that attendance is necessary.
  • Carefully assess when absences should be deemed authorized or unauthorized. Require medical verification as soon as possible after the employee returns to work from an absence.
  • Be flexible when you can be. Consider the employee’s disability and specific circumstances when determining what reasonable accommodations are feasible.
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