Employee absent nearly 60% of the time was unqualified under ADA

Dive Brief:

An employee who needed much more flexibility than she proposed as an accommodation was not a qualified individual entitled to the Americans with Disabilities Act's (ADA) protections, the 6th U.S. Circuit Court of Appeals has ruled (Popeck v. Rawlings Co. LLC., No. 19-5092 (6th Cir. Oct. 16, 2019)).
Adrianne Popeck, an insurance auditor, had exhausted her Family and Medical Leave allotment. The employer initially approved a disability accommodation that allowed her to occasionally leave early or arrive late, but it became clear she needed more time than proposed and it eventually fired her.
A district court granted summary judgment to the employer and the 6th Circuit affirmed. "[A]uthorizing Popeck to arrive late or leave early on occasion would not have come close to solving her attendance problem," it said, noting that she missed work nearly 60% of the time. "Because she evidently requires vastly more flexibility and time off than she proposes, Popeck fails to suggest an accommodation that would enable her to attend work in person regularly. She thus cannot establish that she remains 'qualified' for her job."

Dive Insight:

The ADA requires that employers accommodate workers with disabilities, but it doesn't require that essential functions be removed. And whether regular, in-person attendance can be an essential function remains a fact-specific question.

In Popeck, the plaintiff noted that other employees were permitted to work from home. The employer, however, permitted only certain job groups to work from home — a policy that did not extend to auditors working with confidential information.

Similarly, the 9th Circuit last year held that regular attendance can be an essential function for supervisors. And the 8th Circuit recently decided that a worker at an Iowa meat and processing facility who was absent 195 days was not qualified for ADA protection. Appeals courts have reached the opposite conclusion, too: the 6th Circuit has said that full-time presence might not be essential for an HR generalist's job.

Courts often give deference to employers in deciding what constitutes an essential job function. This means that a written job description prepared before advertising or interviewing that spells out what is essential and what is marginal is key, according to the U.S. Equal Employment Opportunity Commission's (EEOC) The ADA: Your Responsibilities as an Employer. A written job description that employees sign can be especially useful when combined with regular reviews of job descriptions.

EEOC, which enforces the ADA, has said it also will consider include the actual work experience of present or past employees in the job; the time spent performing a function; the consequences of not requiring that an employee perform a function; and the terms of a collective bargaining agreement.