When the ADA first was enacted back in 1990 and went into effect in 1992, the Internet was just getting started. Back then, it was pretty obvious to everyone that an essential function of the job must mean showing up for it. Since then, technology has evolved quite a bit so now many people can do their work from just about anywhere. Therefore, whether attendance is an essential function of the job is now a case-by-case decision. How does one go about figuring out whether attendance is an essential function of the job? In my opinion, the leading case on this issue is the case of Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012). In this case, a neonatal nurse had fibromyalgia (a rather hard condition for physicians and patients to get a handle on and one that can limit effective sleep and which has as one of its components chronic pain/nerve pain throughout the body). As a result of her fibromyalgia and how it affected her, Samper was unable to regularly come to work in accordance with the employer’s attendance policy. Eventually, she was discharged for several reasons, including having seven absences in the 12 month period as well as a general problems with attendance. She then filed suit alleging violation of the ADA.

In affirming summary judgment for the employer, the Ninth Circuit held that regular attendance is an essential function of the job where the job requires attendance. The court goes on to give some great preventive law tips as to how you could know when that job requires attendance. A job requires attendance according to Samper, where the employee must work as part of the team, the job requires face-to-face interaction with clients and other employees, or the job requires the employee to work with items and equipment that are on site. With respect to Samper, the Ninth Circuit said that all these requirements were satisfied considering the nature of being a neonatal nurse and the stakes involved for the hospital’s patients when the hospital is not staffed adequately.

A recent case that follows Samper is Mecca v. Florida Health Services Center, Inc., 2014 WL 408431 (M.D. Fla. February 3, 2014). In this case, the plaintiff was employed as a peripherally inserted central catheter nurse. Such a nurse inserts a peripherally inserted central catheter line into patients, which is an intravenous catheter that is typically inserted through a large vein generally in a patient’s upper arm and then threaded into the patient until it rests in the body directly next to the patient’s heart. It is a job that requires adherence to proper procedures and strict sterile techniques in order to avoid high risks of infection. Mecca’s disability involved panic attacks and anxiety. The accommodation he sought was in the form of leave. With respect to his particular symptoms, they included nervousness, anxiety, incontinence, and sleeplessness, among other things. After several consecutive weeks on FMLA leave, he brought a medical note from the doctor releasing him to work three days a week for 8 to 12 hours a day. However, on his first day at work back from leave, he did not respond to any request for consults, which are requests to assess a patient to insert a line. He also left for the day prior to the end of his shift. After numerous communications with the human resources department indicating that he would be subject to discipline, including termination, for failing to respond to consults, he submitted his resignation. He subsequently applied for Social Security disability benefits claiming he was unable to work as of May 8, 2010 and he was successful in that application.

In finding for the hospital, the Middle District of Florida found Samper persuasive. It also found that the role of the nurse that did what he did was very similar to one of a neonatal nurse. Accordingly, the court found that attendance at work was an essential job function of his job. The court also found that the plaintiff by filing for Social Security Disability Income was judicially estopped from pursuing his ADA case since he did not give an explanation sufficient to warrant a reasonable juror to conclude that he could perform the essential functions of the job with or without reasonable accommodation notwithstanding the representations made in the application for Social Security Disability Income.

Takeaways:

1. When trying to figure out whether an essential function of the job includes attendance, the first step should be to look at the Samper criteria.

2. Keep in mind that even a job that satisfies all these criteria upon initial review may not be a job where attendance is an essential function of the job. For example, the Fifth Circuit in Carmona v. Southwest Airlines Company, 604 F.3d 848 (5th Cir. 2010), held that a flight attendant for Southwest Airlines may not have been in a job where attendance was an essential function in light of the airlines extremely lenient attendance policy, which thereby created a question of fact for the jury to decide.

3. It would behoove the employer to have data to back up its contention with actual practice that attendance is an essential element of the job regardless of whether the particular job at issue meets the Samper criteria.

4. On the plaintiff’s side, if the plaintiff is taking on an ADA case, the plaintiff’s attorney needs to explain the risk of filing for Social Security Disability Income should the client be suggesting that that is something he or she wants to do. If the attorney is an SSDI attorney, that attorneys should make it a part of a routine part of his or her practice to explain how the filing of an SSDI claim may compromise a future ADA claim. Failure on the part of the plaintiff’s attorney or the SSDI attorney to make that explanation may lead to a legal malpractice claim. For a blog entry of mine discussing judicial estoppel, take a look at this particular blog entry. With respect to legal malpractice, I wrote an article on it for the DuPage County Bar Association Journal, The Brief. I expand on that article on pages 142-143 of my book. On the defense side, whenever a person sues for discrimination on the basis of disability in employment, it needs to be a discovery item as to whether that person filed an SSDI claim.

6 Responses to Is attendance always an essential function of the job?

In my blogroll, I have the blog of Jon Hyman, the Ohio employer’s lawyers blog . That blog brought to my attention a case decided yesterday by the Sixth Circuit involving the EEOC and Ford Motor Company. That case is EEOC v. Ford Motor Company. In that case, the Sixth Circuit found that a telecommuting arrangement could be a reasonable accommodation for an employee suffering from irritable bowel syndrome. The employee’s job was that of a resale steel buyer. Resale steel buyers serve as intermediaries between steel suppliers and stampers for companies that use steel to produce parts for Ford. The essence of the job is group problem-solving, which requires that a buyer be available to interact with members of the resale team, suppliers and others in the Ford system when problems arose. Ford managers made the business judgment that such meetings were most effectively handled face-to-face and that email or teleconferencing was an insufficient substitute for in person team problem-solving. The plaintiff’s irritable bowel syndrome was a very severe case causing all kinds of problems. In the end, the plaintiff formally requested that she be permitted to telecommute on an as needed basis as an accommodation for her disability despite a policy that provided that all salaried employees were eligible to apply for telecommuting arrangement but that such arrangements are not appropriate for all jobs, employees, work environments or managers. Ford did suggest several alternative besides telecommuting, including moving her cubicle closer to the restroom or seeking another job within Ford more suitable for telecommuting. The plaintiff rejected both of those options and then filed a charge with the EEOC. That filing led to a series of events from which it might be inferred the plaintiff suffered retaliation. The EEOC then filed a complaint. The District Court granted summary judgment for Ford and the EEOC appealed. The Sixth Circuit reverses in a two to one decision with a vigorous dissent by Justice McKeague. The majority reasoned as follows:

1. In the Sixth Circuit, at least according to this panel, the employer bears the burden of proving that a challenged job criterion is essential. Therefore, the majority reasoned that it would be appropriate for it first to consider whether the employee could do the job if that essential function was removed. If the employee can do the job with that essential function removed, then it is up to the employer to show that the job did involve that essential function.

2. The law must respond to the advance of technology in the employment context, as it has in other areas of modern life and recognize that the workplace is anywhere that an employee can perform his or her job duties.

3. To the majority, the critical question is not whether attendance is an essential job function for a resale buyer, but whether physical presence at the Ford facilities was truly essential (the dissent didn’t buy this distinction at all).

4. An employer cannot redefine the essential functions of an employee’s position to serve their own interests. In other words, the court has some ability to exercise its own common sense as to whether the essential functions of the job posited by the employer really are essential functions.

5. Telecommuting is a reasonable accommodation and should not be confused with flextime arrangements.

6. Ford made a mistake by not engaging in an interactive process to explore reasonable alternatives if they objected to the plaintiff’s request to telecommute for up to four days per week.

7. Ford’s offer to help the plaintiff in finding alternative positions within Ford was not a reasonable accommodation because there was no guarantee that such a position would be forthcoming.

8. Sufficient facts existed to support that questions of material fact existed with respect to a retaliation claim.

If I was in Ford’s shoes, I would petition for an en banc rehearing of the case using the dissent as the basis for getting it. There was an extremely vigorous dissent by Justice McKeague. In particular:

1. Ford supplied enough evidence (the dissent thought it was overwhelming evidence), to show that attendance was an essential function of the job. In particular, the dissent cites to Samper and says what is going on in this particular case is that the employee is essentially asking for a reasonable accommodation exempting her from essential functions thereby causing the essential functions and reasonable accommodation analysis to run together.

2. A person who is excessively absent from a job is not otherwise qualified as a matter of law.

3. The plaintiff rejected reasonable accommodations offered by Ford, and therefore, is no longer otherwise qualified for the position.

4. The dissent believed that retaliation was not there either because the plaintiff could not show that the reason was false and that discrimination or retaliation with the real reason since there were plenty of performance difficulties with the plaintiff in the performance of her job.

Here is why pursuing a rehearing en banc makes sense for the defense:

1. Many decisions give far more credence to the employer’s version of what an essential function of the job is than the majority does in this opinion. Ford also had evidence, whether it is sufficient evidence is another story, to back its claims up.

2. Allowing a plaintiff as part of their case to say that an essential function of the job can be taken away, and therefore, it is up to the employer to show that the essential function of the job really exists is to my mind a novel approach. I don’t recall many other cases, if any, taking this particular approach.

3. Many cases over the years have held that a person is no longer otherwise qualified if they turned down a reasonable accommodation from the employer.

4. As I have written on, how far the employer has to go with respect to reassignment is far from clear.

In short, if the Sixth Circuit refuses to rehear this case, assuming such a request is made, I could definitely see an appeal to the US Supreme Court.

Both Robin Shea at http://www.employmentandlaborinsider.com/americans-with-disabilities-act/breaking-6th-circuit-will-rehear-ford-telecommutingreasonable-accommodation-case/ and Jon Hyman at http://www.ohioemployerlawblog.com/2014/09/6th-circuit-agrees-to-re-hear.html
reported that the Sixth Circuit has agreed to rehear this case en banc. Obviously, I am not surprised as there are too many problems with this decision. As noted above they include, in addition to the points made by the dissent: 1) a complete lack of deference to the employer’s decision as to what is an essential function of the job even where the employer had evidence to back that decision (whether that evidence is sufficient is another story); 2) a completely novel approach by the panel with respect to taking away an essential function of the job and then demanding the employer show that the essential function of the job really exists; 3) case law of long-standing saying that a person who turns down a reasonable accommodation is no longer qualified; and 4) the law with respect to reassignment is not as clear as the decision makes it out to be.

In short, if I was the plaintiff (I am not involved in this litigation at all), I would strongly think about settling. That way, this decision would stay on the books. On the defense side, as we just saw this week, the Sixth Circuit has come down with a couple of very favorable decisions for employees with disabilities, and so there may be some incentive for the defense to settle as well. On the other hand, there may be a concern over the precedent that this case sets and therefore, the defense may want to pursue the rehearing. After all, assuming oral argument is granted for the rehearing, the defense could settle later if need be depending on how it reads the tea leaves of the oral argument.

http://setexasrecord.com/news/295939-man-with-social-disorder-sues-after-being-denied-request-to-work-from-home

in light of the cases discussed above, readers may be interested in this article, link above, involving a person with Asperger’s who had successfully works from home but was subsequently fired by the employer when the employer refused to allow him to continue working from home.

See http://www.employmentandlaborinsider.com/

Also, Robin Shea, a friend and colleague and whose blog is one of the ones that appear in my blogroll, has a blog entry, link immediately above, on the Sixth Circuit case as well. That entry, which as all of her blog entries is very entertaining, also has with it an interview of her discussing the case.

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