By: Condon McGlothlen

“Eighty percent of success is showing up,” according to Woody Allen.  One could quibble with Woody’s figure, but who could disagree with the proposition that being present at work is an essential part of any real job?

Answer: the EEOC, that’s who!  With some increasing frequency, the EEOC has been telling employers and federal judges that attendance is not an essential job function.  Doesn’t common sense dictates otherwise?  Can an employee who isn’t “present” on the job perform any job function, which necessarily includes essential functions? Arguably, the answer to those questions makes attendance itself either an essential function or a qualification requirement for essential functions.  Either way, litigation abounds. 

Courts Recognize Attendance As An Essential Function

Most federal courts that have addressed the issue agree that showing up is half the battle.  See, e.g., Valdez v. Mueller Supply Company, Inc., No. 11-2051 (10th Cir. Feb. 13, 2012) (unpublished op.).  In the Seventh Circuit (Illinois, Indiana and Wisconsin), the U.S. Court of Appeals recently reaffirmed this principle in Basden v. Professional Transportation Inc., Case No. 11-2880, 2013 U.S. App. LEXIS 9293 (7th Cir. May 8, 2013).  There, the plaintiff failed to return to work after suspension and was then terminated under the employer’s no-fault policy, which did not distinguish between medical and non-medical leave.  Before she was terminated, Ms. Basden submitted a leave request form indicating continued leave was needed because of “complications due to a medical illness (MS).”  At the time of termination, however, Ms. Basden had no final diagnosis, no prescribed treatment, and — most importantly — no anticipated date by which she could have been expected to attend work regularly even if leave had been granted.

A unanimous Seventh Circuit panel rejected her ADA claim, ruling she was not a “qualified individual for ADA purposes.”  Both the holding and reasoning in Basden support the legality of no-fault attendance policies under the ADA.  (FMLA issues are not considered in this particular blogpost.)    

Indefinite Leave?  Didn’t See that Comin’! 

Nowhere in the original ADA did Congress reference leaves of absence as a possible (much less reasonable) accommodation.  The phrase did appear in EEOC’s 1991 regulations, but only in the following narrow context: “[O]ther accommodations could include permitting the use of accrued paid leave or providing additional unpaid leave for necessary treatment … .”  29 C.F.R. § 1630.2(o)(App.).  In other words, employees might need limited time off for doctor’s visits, surgical recovery and the like — short-term absences after which the employee would almost certainly return to work.

From that passage in the 1991 regulations, EEOC apparently reached the conclusion in its 2002 Reasonable Accommodation Guidance that employees are entitled to leave when “recuperating from an illness or an episodic manifestation of the disability.”  Furthermore, according to that guidance, an “employer may not apply a no-fault leave policy under which employees are automatically terminated after they have been on leave for a certain period of time . . . .”  Indeed, according to EEOC, disability-related leave must be job-protected “unless the employer demonstrates that holding open the position would impose an undue hardship.”  Id.

Fast forward to 2008, when the ADA was amended to broaden the definition of covered disabilities.  Notably, Congress made no provision recognizing leave as an accommodation.  (In fact, the statute’s accommodation provisions were untouched by the 2008 amendments.) 

Yet, in its subsequent regulations appendix, the EEOC reintroduced the concept of indefinite leave under the definition of “a record of impairment.”  That definition now states: “An individual with a record of a substantially limiting impairment may be entitled, absent undue hardship, to a reasonable accommodation if needed and related to the past disability.  For example, an employee with an impairment that previously limited, but no longer substantially limits, a major life activity may need leave or a schedule change to permit him or her to attend follow-up or “monitoring” appointments with a health care provider.”  29 C.F.R. § 1630.2(k)(3).  Here again, the type of leave referenced is short-term and of fixed duration; i.e., doctor appointments that take only a few hours out of the work day, not weeks or months on end.

So what’s an employer to do????  We think it’s important for employers to remember that while the EEOC’s Policy Guidance can be informative and helpful – it’s just that . . . Guidance. 

What’s A Conscientious Employer To Do?

It is by now conventional wisdom to avoid a policy or practice of automatically terminating employees who exhaust their medical leave.  (Even in the Seventh Circuit, EEOC has obtained multi-million dollar settlements from companies who unilaterally terminated employees on leave after 6 months, or a year, or some other fixed period without engaging in the interactive process).  Instead, before terminating an employee on protracted leave — one exceeding 12 continuous weeks, for example — it’s a good practice to contact the employee in writing and ask if s/he has a return-to-work date, or if s/he could return immediately with a reasonable accommodation.  If the employee fails to respond, or responds by answering “no” to both questions, the employer’s ADA duty to accommodate should be considered satisfied.

So, must an employer abandon “no fault” attendance policies in all jurisdictions?  No, but proceed with caution.  In the Seventh and the Tenth, employers can be reasonably certain that federal courts will hold the consistent application of no-fault policies lawful under ADA.  (The Tenth Circuit covers Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.)  Other circuits likewise view attendance as an essential function.  Some are equivocal, however, and some are inclined to side with EEOC.  Make sure you know the law of your circuit, and that any no-fault attendance policy has been consistently applied.

For more on this topic under California law, we encourage you to review Seyfarth’s “CalPeculiarties” blog series on this topic.  And in the coming weeks, Employment Law Lookout will, likewise, review the application of unlimited leave as a reasonable accommodation in other jurisdictions.  So, stay tuned!