Daily Attendance Is Not An Essential Function of Every Job

Most jobs require daily attendance, but is daily attendance always required?  Don't most jobs allow time off for workers with good reasons?  Under the Americans with Disabilities Act, workers are entitled to time off as part of treatment for a disability.  Yet, there are cases that state otherwise.  See, e.g., Rogers v. Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996).  But, the facts behind the Rogers decision indicates something different.  Mr. Rogers was terminated when he had been out of work for three months and still had a year of disability leave remaining.  Even at the conclusion of the year long leave, there was no certainty that he could return to work.  His leave was much closer to indefinite leave.  The Rogers court was not addressing a definite leave time with clear end points.  

The ADA requires an analysis unique to each person with a disability.  Some persons do require leave as part of their treatment.  Numerous cases find that such persons are entitled to that leave.  In the U.S. Supreme Court decision, U.S. Airways, Inc. v. Barnett, 553 U.S. 391, 397-398 (2002), the court expressly found that persons with a disability were entitled to leave as an accommodation.  

So, the decision by the Western District of Texas in Carter v. Northside Independent School District, No. SA--11-CV-492 (8/10/12) is wrong or at least, mis-leading in one respect.  In that decision, finding summary judgment to be appropriate, the court found job attendance to be an "essential element" of any job.  if the person with a disability cannot appear for work everyday, the Court ruled, then the plaintiff is not qualified for the position.  And, in the Carter case, the teacher missed work some 60% of the time. 

But, the NISD posted the job description for the plaintiff.  The job description includes no reference to daily attendance or to how many hours per day a teacher must work.  And, speaking from personal experience, I have known one or two part-time teachers or co-teachers.  The summary judgment in Carter may be supported on other grounds.  In fact, the court also noted that the employee was out on "indefinite" leave.  Indefinite leave, noted the court, is not an accommodation an employee must grant. 

But, the court was not correct in its assumption that daily attendance is always an essential function of every job. 

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