Lisa Burden | May 29, 2020

Dive Brief:

• An employee's "unabated absenteeism" rendered her unqualified for her job and Americans with Disabilities Act (ADA) protections, the 7th U.S. Circuit Court of Appeals ruled (Moens v. City of Chicago, No. 19-1913 (7th Cir. May 19, 2020)).
• The city of Chicago granted Elizabeth Moens schedule adjustments to accommodate impairments, but she continued to miss work, according to court documents; Moens was absent 50 times in one year. She was suspended twice and eventually fired. She sued, alleging, among other things, that the employer failed to accommodate her, in violation of the ADA. The employer argued that Moens' absenteeism rendered her unqualified for her job — a prerequisite for ADA coverage. A federal district court agreed, noting that an employee whose disability prevents her from coming to work regularly cannot perform the essential functions of her job. 
• On appeal, the 7th Circuit agreed, stating that "[a]fter the City offered Moens numerous accommodations — including extended leave, a shortened workday, and delayed start times — she still missed work hours over 50 times in her last year at the City. With that record of unabated absenteeism, a reasonable jury could not conclude that Moens was a qualified individual with a disability."

Dive Insight:

The ADA protects applicants and workers with disabilities who, "with or without reasonable accommodation, can perform the essential functions" of the job, the Moens court noted. While the ADA requires that employers accommodate workers with disabilities, essential functions don’t have to be removed.

The question of whether in-person attendance is an essential function of a job can differ depending on the job and many courts have answered this question in fact-specific ways. The 9th Circuit held that regular attendance can be an essential function for supervisors. The 8th Circuit decided that a worker at an Iowa meat and processing facility who was absent 195 days was not qualified for ADA protection. And the 6th Circuit ruled last year that an employee who was absent nearly 60% of the time was unqualified under ADA and that allowing her to arrive late or leave early would not have "come close to solving her attendance problem."

Of course, full-time attendance isn’t always required; the 6th Circuit ruled that full-time presence might not be essential for an HR generalist, for example.

Courts often examine job descriptions to determine the essential functions of a job, if they are up-to-date and accurately reflect an employee's duties. According to guidance from the U.S. Equal Employment Opportunity Commission (EEOC), "a written job description prepared before advertising or interviewing for a job will be considered by EEOC as evidence of essential functions."

Because courts often rely on employer determinations of essential functions, written, up-to-date job descriptions that spell out what is essential and what is not essential can be important in litigation. Experts recommend that HR conduct job description reviews at the same time as annual performance reviews and have employees sign off on them at that time.

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Source: HR Dive

https://www.hrdive.com/news/employees-unabated-absenteeism-ruled-out-ada-protection/578680/