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Is an attendance requirement reasonable under the ADA?

May 30, 2013

Article courtesy of SBAM Approved Partner ASE

By Anthony Kaylin

PTI is a company that provides around-the-clock ground transportation service for railroads seeking to move their train crews from one route to another. Ms. Terri Basden was engaged by PTI as a dispatcher on June 29, 2007.

Employees at PTI’s dispatch center were subject to an attendance policy that defined an “incident” of absenteeism as a period away from a scheduled shift for a minimum of four hours. An absence of up to five consecutive shifts for a single reason could be considered one incident.  The attendance policy provided that after an employee’s fifth incident within a year, the company could issue a verbal warning; after the sixth incident, a written warning; after the seventh, a three-day suspension; and after the eighth, termination. The policy did not differentiate between absences for medical reasons and other absences.

Basden had two absenteeism incidents in 2007. In January 2008, she became dizzy and fell in her home. She was absent from work from January 14 through January 17. This absence was treated as her third incident. She had another episode of dizziness and returned to the emergency room on February 1, which resulted in another absence, her fourth incident under the policy. Then, Basden was absent from March 13 through March 15. This was her fifth incident, and it prompted a verbal warning. Absences on April 7, April 8, and April 11 through April 14 were treated as a sixth incident, triggering a written warning.

Basden, who was eventually diagnosed with multiple sclerosis, did provide a note from her physician after each incident.

Basden was absent again on May 22, 2008 and was suspended for three days.

PTI’s policy permitted an employee with at least a year’s tenure to request an unpaid 30–day leave of absence. On May 23, 2008, Basden submitted a leave request form, even though she had not yet been with the company for a year. On the form, she indicated that the leave was necessary because of “complications due to medical illness (MS).” That request was denied, and when Basden failed to return to work following her suspension, PTI terminated her employment.

Basden sued PTI for violation of the ADA.  To prevail on an ADA claim, she had to show that 1) she was disabled; 2) she was otherwise qualified to perform the essential functions of her job with or without reasonable accommodation; and 3) her employer took an adverse job action against her because of her disability or without making a reasonable accommodation for it. Basden also argued that PTI failed to engage in the interactive accommodation exploration process required by the ADA, and that PTI did not establish that the leave she sought was unreasonable. The 7th Circuit agreed with her.

Yet, under the ADA an employer is generally permitted to treat regular attendance as an essential job requirement, and need not accommodate erratic or unreliable attendance. Therefore, the Court still ruled in favor of PTI. PTI’s actions did not violate the ADA even though the company did not engage, as it should have, in the interactive accommodation process.  The Court stated that even if an employer fails to engage in the required process, that failure need not be considered if the employee fails to present enough evidence to establish that she was able to perform the essential functions of her job with an accommodation.

Here, PTI cited regular attendance as an essential function of Basden’s job. It was in the job description.   Basden did not demonstrate that she was able to come to work regularly at the time of her termination, or that her regular attendance could have been expected either following the requested leave or with any other accommodation.  Therefore, Basden did not show at the time she was absent that she was qualified to do the job with or without a reasonable accommodation.

As Julie Furer Stahr of Shiff Hardin LLP points out, the obligation to explore and provide accommodation does not necessarily extend to accommodations that are, or would be, futile and would not enable the employee to perform essential functions.  Furthermore, the importance of well-written job descriptions that clearly set forth essential job functions is a key element in defending a lawsuit under the ADA.

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