Many employers are shocked to learn that actually showing up for work may not be an “essential function” of a job. Providing welcome news for employers, a Florida district court recently held that regular attendance is an essential function under the ADA for a specialized nurse and that his employer had no obligation to grant a request “to arrive at work at any time, without reprimand.”
Readers who attended our seminar last fall on “Disability Discrimination: Best Practices & Legal Developments” will remember an extensive discussion of whether regular attendance is an essential function under the with Disabilities Act. While it might seem like common sense that an employer can Americans demand punctual attendance of its employees, guidance from the EEOC and several courts have demonstrated that it is no longer safe for an employer to assume attendance is an essential function of allpositions. A recent line of federal cases, however, demonstrates that employers do not have to assume that attendance never is an essential function.
In Mecca v. Florida Health Services Center, Inc.(M.D.FL. Feb. 3, 2014), a federal judge held that regular attendance is an essential function of an acute-care nurse, a specialized nursing position primarily responsible for inserting IV catheters through a patient’s vein until it rested next to the plaintiff’s heart. The plaintiff in Mecca suffered from depression, panic attacks, and anxiety, which interfered with his ability to perform his job. His employer granted him numerous leaves of absence under the FMLA, modified his working schedule, and reduced his hours. Despite these accommodations, the plaintiff’s symptoms did not improve. After returning from one such leave, the plaintiff sought what the court deemed a request “to go home or be absent from work if he was experiencing episodic flare-ups of depression and anxiety/panic making it difficult to function.” When the request was denied, the plaintiff quit and sued under the ADA.
Granting the employer’s motion for summary judgment, the court held in Mecca that regular and reliable on-site attendance was an essential function of the PICC position. In so holding, the court highlighted that the position required on-site presence and specialized skills, thereby making it difficult to find on short notice a suitable replacement who could perform potentially fatal procedures. The court also noted the lengths at which the employer went to attempt to accommodate the plaintiff and the fact that the plaintiff was unable to provide “any estimate as to when or if his condition would improve.”
When managing employee leave demands, employers must recognize that regular attendance is not an essential function of many jobs, but may be for those requiring specialized and highly technical skills in a regimented work environment. Employers who believe attendance is an essential function of a position would be wise to list “attendance” and “punctuality” as essential functions on their job descriptions and communicate the reason for such requirements. Employers also should be aware that allowing employees to work from home, work flexible schedules, and telecommute may make it more difficult to argue that regular on-site attendance truly is essential.