On 1/27/17, the Sixth Circuit Court of Appeals affirmed summary judgment for an employer in a case involving requests by a Customer Service Representative (CSR) with depression and anxiety attacks for various accommodations, including a flexible start time, breaks throughout the day, and an extended leave of absence until the completion of an 8 week treatment program. The court rejected the employee’s ADA claims finding that regular attendance was an essential function of the employee’s job. In its holding in Williams v. AT&T Mobility Services, Inc. (6th Cir. 1/27/17), the court relied on prior case law in which it had opined that “regular in-person attendance is an essential function of most jobs especially the interactive ones.” The court also concluded that the evidence showed that regular attendance was an essential function of this employee’s CSR position based upon a number of factors, including AT&T’s express statement in its Attendance Guidelines to that effect. The court determined that the statement in the Attendance Guidelines was particularly compelling because it “predated this litigation.”

No flexible start time or added breaks required. The court concluded that the employee had failed to propose any reasonable accommodations that would have allowed her to perform the essential functions her job. The court specifically rejected the employee’s argument that a flexible start time or multiple breaks during the day would have enabled her to perform her job. The court noted that the employee was requesting the frequent breaks because she needed to calm down after stressful calls. The court determined that the employee “essentially admitted that she could not perform her job duties during her anxiety attacks.” Moreover, the employee was denied STD leave and in her appeal documentation she had represented that she “could not function at work in a call center environment” and “could not focus mentally due to mental illness.”

No additional leave required. The court also rejected the employee’s request for additional leave through the end of her 8 week treatment program as being unreasonable even though her health care provider had estimated that she would be able to return to work at that time. The court specifically stated: “A physician’s estimate of a return date alone does not necessarily indicate a clear prospect for recovery, especially where an employee has repeatedly taken leaves of unspecified duration and has not demonstrate that additional leave will remedy her condition.”  In this case, the court noted that this employee “had a history of taking leaves” and that her condition had failed to improve during those leaves. 

Summary judgment for AT&T on ADA discrimination, failure to accommodate and retaliation claimsThe court rejected ADA discrimination and failure to accommodate claims, as well as an ADA retaliation claim. In doing so, the court emphasized the many favorable actions that AT&T took towards the employee before terminating employment, including that AT&T managers were careful to ensure that they did not count absences covered by STD when evaluating her attendance and gave her multiple chances to return to work before firing her.    The employee submitted attendance records of other employees and argued that AT&T was treating her more harshly.  The court rejected this argument on the ground that the employee had failed to show that these employees were “similarly situated” to her, “meaning that they had the same supervisor, were governed by the same standards of conduct, and had committed the same Attendance Guidelines violations as [her], without any differentiating or mitigating circumstances that would merit different treatment.”

Lessons for Employers?  Job descriptions/policies. It cannot be overstated how important it is for employers to have policies, job descriptions, and other documents (e.g., warnings, performance reviews) that set forth essential functions in a way that can help defend an ADA claim. If regular, reliable and predicable attendance is important to employers, they should have attendance policies and job descriptions that list it as an essential function of the job. The same is true if working in the office is important or timely arrival at work. Employers reduce the risk of ADA liability by communicating these essential functions in writing to employees.   While it is best to create these documents before an employee raises any issue about a potential accommodation, the court stated that the employer’s statements here warranted deference because they “predated this litigation.” Therefore, if an employee indicates, for example, a need to work from home or have flexible start times, employers should communicate in writing to the employee any and all essential functions of the job that might be impacted by these requests, whether that be in a memo, email or warning.

Do not rush to termination. The court was particularly influenced here by the fact that AT&T was patient with this employee and did not rush to termination. AT&T ensured that it did not include STD-eligible absences when calculating infractions of its Attendance Guidelines. It also gave the employee extra time to submit medical documentation supporting her STD claim, and, in fact, sent three different letters to her advising her that if she did not return to work or obtain approval for STD by particular dates (each time extending the date), her employment would be terminated. Courts (and juries) are more likely to rule in favor of employers who show compassion and provide leeway to employees. It is not unusual for managers and/or HR to want to terminate employment sooner rather than later, and doing so may not only encourage an employee to sue but increase the risk that such a lawsuit may be successful.