Enough is Enough: Regular Attendance is an Essential Function of a Job under the ADA

Originally appeared in Labor Law Newsletter - January 2002

The United States Court of Appeals for the Seventh Circuit recently held that an employee’s request for unlimited sick days was not a reasonable accommodation under the Americans With Disabilities Act ("ADA"). EEOC v. Yellow Freight Systems, Inc., 253 F.3d 943 (7th Cir. 2001), involved a trucking company dockworker who suffered from AIDS and Kaposi’s sacoma, a cancer related to AIDS. The plaintiff had a history of poor attendance and was ultimately terminated for excessive absenteeism. Specifically, in 1991 he left early twice and called in sick 37 times; in 1992 he left work early once and took 15 days off; in 1993 he left early 4 times and was out 126 days; in 1994 he left work early 3 times and took 47 days off; and in 1995 he left work early 3 times and called in sick 50 times.

In 1995, plaintiff contacted his supervisor and requested time off for a medical condition. The supervisor explained to plaintiff that he was not eligible for FMLA leave, but offered him a 90-day unpaid leave of absence as an alternative. Instead, plaintiff chose to simply call in sick for the next two weeks. In December 1995, plaintiff was diagnosed as HIV positive and, in January 1996, was diagnosed with Kaposi’s sacoma. On January 12, 1996, plaintiff sent a letter to his supervisor apprising him of his medical problems.

Plaintiff’s attendance worsened. He called in sick every day in January, February, and March 1996. At that time Yellow Freight decided to treat plaintiff under its five-step progressive disciplinary policy. Under the policy, the company had a step 1 "coaching session" with him, and shortly thereafter sent him a step 2 letter. Plaintiff responded by reminding the company of his illness. When the absences continued, the company sent a step 3 letter and plaintiff wrote back again, reminding the company of his medical condition.

Yellow Freight responded by sending an ADA accommodation form. Plaintiff returned a letter stating he was "requesting no particular considerations at this time other than the reasonable accommodation necessary to monitor and maintain my health status…[I want] sick days as needed without being penalized."

Plaintiff missed the next 10 of 19 working days, resulting in a disciplinary suspension. He was terminated for excessive absences a few months later. Plaintiff filed a charge with the EEOC, alleging that the company disciplined him on account of his disability and denied his request for reasonable accommodation. The EEOC brought suit against Yellow Freight, and the plaintiff intervened. The lower court granted summary judgment for the employer on the employee’s claims.

On appeal, the Seventh Circuit affirmed the lower court’s decision. The critical question on appeal was whether an essential function of plaintiff’s full-time position was regular attendance, and if so, whether he met the requirement for "essential function."

The court reasoned that this circuit, and every other circuit that has addressed this issue, has held that in most instances the "ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability…in most cases, attendance at the jobsite is a basic requirement of most jobs." Further, the court stated that it is not the existence of the absences themselves, but the "excessive frequency of an employee’s absences in relation to that employee’s job responsibilities that may lead to a finding that an employee is unable to perform the duties of his job."

On the claim that Yellow Freight failed to accommodate plaintiff, the court determined that plaintiff’s request for "unlimited sick days, if needed, without being penalized" was not a reasonable request as a matter of law because "businesses are not obligated to tolerate erratic, unreliable attendance or to provide an accommodation which would impose an undue hardship on the business."

Moreover, an employer is not required to provide an employee the specific accommodation requested. Yellow Freight met its burden to interact with plaintiff regarding a reasonable accommodation, offered him the option of 90 days’ medical leave, and sent him an accommodation review form. Plaintiff rebuffed the company’s efforts.

Shortly after the Yellow Freight decision, the Seventh Circuit ruled in another case involving the issue of the "essential function of the job." In Winfrey v. City of Chicago, 259 F.3d 610 (7th Cir. 2001), the court determined that the essential functions of the position of city ward clerk were those listed on the official job description, and the fact that the city offered to accommodate the employee by modifying the position did not mean that the duties included in the modified position were the only essential functions of the job. The court found the plaintiff could not demonstrate that he could perform the essential functions of the city ward position.

On several occasions the Seventh Circuit dealt with the issue of reassigning a disabled employee from a job he cannot perform to one he can. In EEOC v. Humiston – Keeling, 227 F.3d 1024 (7th Cir. 2000), the court held that an employer is not required to reassign a disabled employee to a vacant position if another, more qualified candidate has applied "provided that it is the employer’s consistent and honest policy to hire the best applicant for the particular job in question rather than the first qualified applicant."

In Ozlowski v. Henderson, 237 F.3d 837 (7th Cir. 2001), the court placed a strict burden on the disabled employee to show there is a vacant position for which he was qualified. The plaintiff in Ozlowski argued that there were several open positions into which the employer could have transferred him. However, the court stated that the plaintiff was not qualified for any of the positions and that several positions were not actually vacant. Specifically, the company had placed an "informal hold" on one of the positions while a new computer system was installed which would likely change the job requirements. The court stated "we do not believe that an employer is required to fill a position which, based on a reason wholly independent of the employee’s disability, it had chosen not to fill. Such a position is not vacant."

Finally, in Williams v. United Insurance Co., 253 F.3d 280 (7th Cir. 2001), the court held that an employer is not required to provide special training to qualify a disabled employee for an open job. The court reasoned that the ADA does not require an employer to offer special training to a disabled employee that is not offered to nondisabled employees.