Many employers have implemented so-called no-fault attendance policies in which employees are charged with a day of leave regardless of the reason for the leave. Once, the employee accumulates enough absent days, s/he will be fired. Such leave policies, however, conflict, with the Americans with Disabilities Act. Under the ADA, when an employee requests an accommodation which might involve leave, the employer must consider the request on an individual basis. The consideration must address the specific employee’s needs, not the potential needs of all employees who request leave.
Texas Employment Law Update, a very good blog, agrees with other employment law blogs which argue that attendance is an essential requirement of every job. See Texas Employment Law post. Other management blogs argue that attendance is a requirement for every job. See Work Blawg. Work Blawg cites cases for the proposition that attendance is an implicit requirement for every job. But, there are many cases which expressly hold that leave is a viable accommodation. See, e.g., US Airways, Inc. v. Barnett, 535 U.S. 391, 397-98 (2002) (an accommodation may includes breaks for treatment).
See also Criado v. IBM Corp., 145 F.3d 437, 443 (1st Cir.1998) (employee’s attempt to extend a three week leave for treatment was reasonable); Walton v. Mental Health Ass’n. of Southeastern Pennsylvania, 168 F.3d 661, 671 (3d Cir. 1999) (“unpaid leave supplementing regular sick and personal days might, under other facts, represent a reasonable accommodation,” but leave requested here was not reasonable); Rodgers v. Lehman, 869 F.2d 253, 259 (4th Cir.1989) (decided under § 501 of the Rehabilitation Act); Cehrs v. Northeast Ohio Alzheimer’s Research Center, 155 F.3d 775, 782–783 (6th Cir. 1998); (medical leave of absence, paid or unpaid, may be reasonable accommodation); Haschmann v. Time Warner Entm’t Co., 151 F.3d 591, 601 (7th Cir.1998); Brannon v. Luco Mop Co., 521 F.3d 843, 849 (8th Cir. 2008); Graves v. Finch Pruyn & Co., Inc., 457 F.3d 181, 185 n.5 (2d Cir. 2006) (noting that “[m]ost other circuits and the Equal Employment Opportunity Commission have concluded that, in some circumstances, an unpaid leave of absence can be a reasonable accommodation under the ADA.”).
The cases that argue that attendance is a job requirement for every job actually address a slightly different issue. Many of these cases actually address the question of whether the employee can ever work. These cases involve employees who miss months and years of work. In Rogers v. International Marine Terminals, Inc., 87 F.3d 755, 759 (5th Cir. 1996), the Fifth Circuit did indeed suggest that attendance was a requirement for every job. But, the fact situation in this case concerned an employee who had missed a year of work and would likely miss many more months of work. The issue was about whether the employee could ever work again, not whether intermittent leave would accommodate his illness or not. The court simply stated the legal ruling too broadly.
Every illness is different. Every treatment plan is different. Every situation is different. Cities have more sources for occupational therapy than rural locations. A patient living in a rural community will have far fewer choices for physical therapy than a city worker. No one situation is the same. That is why the ADA requires an individual assessment.
Indeed, even discussing whether a particular job task is truly required is a fact issue. Whether attendance, lifting, writing, sitting, standing, etc. are true job requirements is a fact issue. It is mis-leading to argue that one case decision can state affirmatively that one particular job task is required for a broad range of jobs, much less "every" job. The Fifth Circuit stated as much in Barber v. Nabors Drilling U.S.A., Inc., 130 F.3d 702, 707 (5th Cir. 1997):
"First, we cannot say, on the facts of this case, that any or all of the above listed … duties as a matter of law are essential functions …. If we venture to second-guess then we simply usurp the most critical function of the jury in ADA cases, i.e., the injection of some indispensable common sense in the determination of what is or is not an essential function."
So, in the end, as with most legal questions, it depends on the situation…..