Employee absent 195 days unqualified for ADA protection, 8th Cir. says
- An Iowa meat and processing facility worker was not a qualified individual protected by the Americans with Disabilities Act (ADA) because she could not demonstrate at the time of her firing that she could "regularly and reliably attend work, an essential function of her employment," the 8th U.S. Circuit Court of Appeals has ruled (Lipp v. Cargill Meat Solutions Corp., No. 17-2152 (8th Cir., Dec. 19, 2018)).
- Sheena Lipp’s job duties at Cargill Meat Solutions Corp. included stacking and supplying empty boxes to the production line, labeling boxes and moving pallets and packed boxes. She was diagnosed with a lung disease that required days off during flare-ups, absences because of treatment and several work restrictions. She was eventually fired and sued, alleging disability discrimination, and a federal district court granted summary judgment for the employer.
- The 8th Circuit, citing its own precedent, said that regular and reliable attendance is a necessary element of most jobs. The ADA provides that consideration shall be given to the employer’s judgment as to what functions of a job are essential, including written job descriptions, the court noted. And the employer in Lipp maintained a written policy stating that "regular attendance is crucial" and enforced the policy with a system of progressive discipline. In addition, all of Lipp’s job activities listed in her job description required required on-site presence, the court said. The court also noted that her 195 days of unplanned absences for both personal and medical reasons in less than one year exceeded the 172 missed days that it had found disqualifying in an earlier case involving a mechanic.
While the ADA can entitle workers with disabilities to leave as a reasonable accommodation, the Lipp court noted that it does not require employers to provide unlimited leave.
In addition, the court said, the employee invoking the ADA's protections must show that she can perform the essential job functions of the job. Lipp’s desired accommodation of additional absences was not one that would enable her to perform the essential function of regular and reliable attendance, the court said.
Courts often defer to an employer's judgment when reasonable. The 9th Circuit, for example, earlier this year said in Ogden v. Public Utility District No. 2 of Grant County (No. 16-35295 (9th Cir., May 16, 2018)) that regular attendance can be essential for a supervisor. However, in Gunter v. Bemis Co., (No. 17-6144/6185 (6th Cir. Oct. 31, 2018)), it was the employee’s actual job duties that defined the essential functions of the job and not the written job description.
As more employees are able to do their work remotely, however, courts are increasingly finding that a full-time presence isn't essential. That's the conclusion the 6th Circuit reached in considering an HR generalist's job in Hostettler v. The College of Wooster (No. 17-3406 (6th Cir., July 17, 2018)). While one appeals court said the ability to work a 12-hour shift isn't necessarily essential, the ability to work overtime and work a rotating shift can be, said two others.
When defending ADA suits examining essential functions, up-to-date, carefully crafted job descriptions and consistently enforced policies can be key.