At least, not when in-person attendance is an essential function of the job, according to the U.S. Court of Appeals for the Seventh Circuit (which further noted that it is generally an essential function of many jobs). Accordingly, requiring an employee to use her existing sick time to cover disability-related absences did not violate the law.
Background of the Case. In Smithson v. Austin, a teacher for a school system for military families had a multitude of mental and physical health issues. She requested initial accommodations that included arriving up to 15 minutes late on an occasional basis, which were granted. Over the next several years, her accommodations requests increased in scope and variety, including the assignment of the first period of the day as her planning period. Although the principal told her that this could not be guaranteed, it appears that this was mostly granted.
After several more years, under a new principal, the teacher, whose condition had worsened, submitted revised accommodations requests, including reporting up to two hours late every day. The new principal’s response was to allow her to use sick leave in half-day increments (which was school policy based on the need to call a substitute for teacher absences) whenever she came in late.
When COVID struck, the teacher’s scheduling issue was resolved due to the fact that classroom instruction became fully remote. Nonetheless, the teacher sued, alleging that requiring her to use a half-day of sick leave whenever she arrived late was a violation of the Rehabilitation Act (the federal employee analog to the Americans with Disabilities Act).
What the Law Requires. Under both the Rehab Act and the ADA, a plaintiff must demonstrate that they are a qualified individual with a disability, meaning that they are capable of performing the essential functions of the job with or without reasonable accommodation. In determining whether a particular function is essential, courts will consider the employer’s judgment, the written job description (if any), the amount of time spent performing the function, the consequences of not performing the function, and the experiences of past and current workers. Notably, courts – including the Seventh Circuit – have held that in-person attendance can be an essential function of many jobs.
The Court’s Decision. In this case, the trial court held, and the Seventh Circuit agreed, that in-person attendance was an essential function of the job of a teacher. The early periods of the day were used for training, teacher collaboration, interactions with parents, ad hoc instruction, and other necessary activities. The fact that the teacher needed to miss up to two hours each and every morning meant that she was unable to perform this essential function – and thus was not a qualified individual under the law.
The teacher argued that early morning attendance was not essential because the school had allowed her to arrive late for a number of years. The Seventh Circuit noted, however, that her initial accommodation request was to arrive fifteen minutes late on an occasional basis, but this grew over the years to consume 25% of the workday on a regular basis – which the Seventh Circuit found was “not a reasonable accommodation as a matter of law.”
In addition, according to the Seventh Circuit, the fact that the school accommodated her late arrival for years did not mean that physical attendance was not essential. The Seventh Circuit specifically noted that, “if an employer goes further than the law requires in accommodating a disabled person, it must not be punished for its generosity by being deemed to have conceded the reasonableness of a far-reaching accommodation.”
Here, the school granted her “significantly more expansive request to regularly arrive two hours late,” but required her to use sick leave in half-day increments to cover her absence, in accordance with school policy. The teacher argued that this was no accommodation at all because every employee receives sick leave, and forcing her to use it penalized her for her disabilities. Yet, as the Seventh Circuit observed, “the very purpose of sick leave is to accommodate employees who are unable to work due to illness.” The teacher’s desire to use unlimited sick time without penalty was not reasonable as a matter of law, in the Seventh Circuit’s view, when in-person attendance was an essential function of her job.
Of additional interest, the Seventh Circuit reviewed the impact of COVID in – and out of – the workplace. The rapid and recent development of work-from-home technologies means that many jobs may no longer require in-person attendance. But this assessment must be made on a context-specific basis. Notably, these technologies were not available when the teacher made her request to miss up to two hours a day. Under those circumstances, allowing the use of sick leave was a reasonable accommodation, in the Seventh Circuit’s view.
Lessons for Employers. This case provides several insights for employers. First, in-person attendance can be an essential function of the job in question, but new technologies may mean that certain jobs that were traditionally performed in person might be able to be performed virtually. This determination must be made on a case-by-case basis, and employers must be open to thinking beyond the traditional methods of accomplishing job functions. But employers never need to excuse the performance of truly essential job functions as an accommodation for an employee’s disability.
Moreover, if an employer does excuse the performance of essential functions or provides more expansive accommodations than required under the law, this will not necessarily mean that the employer has conceded that the accommodation is reasonable. However, it will be easier for the employer to defend that position if it has clearly documented that it is going beyond what is necessary and is providing the accommodation only on a temporary basis.
And last, but not least, employers can utilize existing policies and benefits – like existing sick leave – to provide reasonable accommodations under the law. If the use of such policies and benefits enables the employee to perform their essential functions, it is reasonable and the employer may choose that accommodation, even if it is not the one the employee prefers.