Courts have consistently found regular employee attendance can be an essential function for certain positions that employers don’t have to eliminate in the name of providing an accommodation under the Americans with Disabilities Act (Act). In other words, ignoring absences when regular attendance is an essential function wouldn’t be a reasonable accommodation. The U.S. 5th Circuit Court of Appeals (which has jurisdiction over Mississippi employers) recently came to the same conclusion but also found the need for frequent, irregular absences without notice can prevent employees from being qualified individuals with a disability entitled to an accommodation in the first place. Let’s take a closer look.
BNSF Railway Company employs dispatchers, who are responsible for guiding the safe and efficient movement of trains through an assigned district. Given the nature of the responsibilities, the position is deemed a safety-sensitive job by the company.
BNSF maintains written employee attendance guidelines, which prohibit excessive absenteeism. The guidelines define “excessive absenteeism” to include “when an individual’s incidents of absenteeism disrupt the regular working schedule of dispatchers.” They also define an “incident of absenteeism” to include any absence from work such as being off without justifiable reason, pattern absences, sporadic absences, tardiness, or leaving work early.
Jay Weber worked as a train dispatcher from 1989 until his termination in 2016. In 2009, he was diagnosed with a brain tumor. In April 2015, he had a seizure, was diagnosed with epilepsy, and entered an epilepsy monitoring facility for in-patient care.
Weber’s neurologist let BNSF know he couldn’t safely perform his train dispatcher job. The employer placed him on a medical leave of absence for three months. Eventually, he was cleared to resume his duties, at which point he requested two accommodations for his disability:
- He needed to attend doctor visits to monitor his epilepsy; and
- Based on the neurologist’s advice, he needed to be able to take days off when he experienced “triggering events” that might increase the risk of seizure, such as sleeping for fewer than four hours.
In the first three months of 2016, Weber had five unexcused absences: two because of sleep deprivation, two for doctors’ appointments, and one for an unrelated medical procedure. As a result, BNSF disciplined him for excessive absenteeism and ultimately terminated him in May 2016.
Weber sued BNSF under the ADA alleging the company had failed to provide a reasonable accommodation for his disability. That is, it hadn’t excused the handful of absences leading up to his termination. The district court dismissed the claim, and he appealed.
5th Circuit’s decision
The 5th Circuit resolved Weber’s failure-to-accommodate claim by finding he wasn’t a “qualified individual with a disability.” Therefore, he wasn’t entitled to a reasonable accommodation.
Under the ADA, a qualified individual is one who can perform the essential job functions with or without a reasonable accommodation. The Act’s regulations define “essential functions” as “the fundamental job duties of the employment position the individual with a disability holds or desires.” And “reasonable accommodations” can include “job restructuring, part-time or modified work schedules, reassignment to a vacant position, … and other similar accommodations.”
According to the 5th Circuit, for Weber’s appeal to be successful, he had to show either (1) he could perform the essential job functions in spite of his disability, or (2) a reasonable accommodation would have enabled him to perform them. The train dispatcher argued the district court erred when it found he wasn’t a qualified individual because he couldn’t perform an essential function (regular worksite attendance) with or without reasonable accommodations. He claimed regular attendance wasn’t an essential function because BNSF had granted him leniency numerous times over the years, which contradicted its assertion that regular attendance was necessary.
The 5th Circuit disagreed, observing courts generally concur that regular attendance is an essential function for most jobs. In determining whether a function is essential, the courts look to several factors, such as the employer’s judgment about which tasks are necessary (which is given the greatest weight) and the consequences of not requiring the individual to perform the function.
BNSF argued regular on-site attendance was an essential function for the train dispatcher position, and the 5th Circuit found the company’s longstanding, written attendance policy supported the assertion. In addition, the appellate court said the “consequences” factor supported the employer’s position. After all, if a dispatcher didn’t show up for work, the company had to provide coverage to fill the vacancy.
In addition, while recognizing Weber had been shown leniency on past occasions, the 5th Circuit noted BNSF warned him before the five incidents of absenteeism for which he was disciplined (and ultimately terminated) that any future attendance guidelines violations could result in further disciplinary action.
Further, the 5th Circuit rejected Weber’s argument that excusing the absences when he needed to attend a mandatory medical appointment or became sleep-deprived and was a risk to safety would have allowed him to perform the essential functions. The court said the accommodations wouldn’t have enabled him to perform the essential function of regular attendance. After all, neither he nor BNSF could determine in advance how often he would become sleep-deprived (i.e., sleep fewer than four hours) and need to take medical leave.
For the above reasons, the 5th Circuit held Weber wasn’t a qualified individual and therefore wasn’t entitled to an accommodation. Weber v. BNSF Railway Company, 2021 WL 716645 (5th Cir., Feb. 24, 2021).
Takeaway
ADA accommodations often involve requests for time away from work and implicate an employer’s attendance expectations and policies. Although the 5th Circuit found regular on-site attendance was an essential function and Weber’s irregular and unplanned absences prevented him from being a qualified individual with a disability, you must carefully consider such requests, taking into account:
- The nature of the employee’s duties;
- Whether regular on-site attendance is actually an essential part of those duties; and
- Whether the requests for time away from work would be for set times capable of planning (as opposed to irregular).
Martin J. Regimbal, a shareholder of The Kullman Firm, can be reached at mjr@kullmanlaw.com.
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