Think about all the different jobs at your workplace. Is attendance an essential function for every one? This could lead us into a protracted discussion about what it means to "attend" work, whether and why we care where or when our employee works, so long as the work gets done. But for now, take comfort in the fact that at least one court, the 7th Circuit "has found regular job attendance to be an essential job requirement." That's key under the Americans with Disabilities Act (ADA) because covered employers, those with 15 or more employees may not discriminate against and must provide a reasonable accommodation for qualified individuals with a disability. And being qualified means the person must be able to perform the essential functions of your job with or without a reasonable accommodation.
Now, back to attendance. Think about your leave of absence policy or practice. When an employee is out for medical reasons, do you require the employee to be fully released to return to work? What about a release to return to work but with restrictions?
In a recent case, a court denied the employer's motion to dismiss and permitted the EEOC to proceed on its claim that the employer's leave of absence policy violated the ADA. The policy provided that employees who were on leave beyond twelve months would be "administratively separated" from employment. In addition, before an employee could return from a medical leave of absence the employee had to meet a standard of fitness which required them to work without an additional accommodation. So when an employee tried to return to work prior to twelve months, but with restrictions, the employer declined the request. Then when the employee was still out on leave beyond twelve months the employee was terminated. Here is a summary of the back and forth (I paraphrase):
Court: A 100% healed policy is per se impermissible because it prevents individualized assessment and thus necessarily operates to exclude disabled people that are qualified to work.
Defendant Employer: But the ability to regularly attend work and not miss multiple months is an essential job function and not a qualification standard.
Court: Yes, we recognize that job attendance has been found to be an essential job requirements but that's not the problem here. The problem is on the imposition of a 100% healed requirement on those seeking to return to work.
- Any qualification standards you use including employment tests or other selection criteria must be job-related and consistent with business necessity.
- So if you are going to require an employee to be fully released to return to work at 100%, you have the burden to meet the above criteria.
- In the above case the employee asked to come back to work with the use of a cane and a hand cart. For some jobs that might be a reasonable accommodation, for others it might not.
- The ADA requires and this court made mention of the employer's obligation to conduct an "individualized assessment." Blanket policies related to qualification standards can lead you down a slippery slope.
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