Eighth Circuit Holds that Regular and Reliable Attendance at Work is an Essential Function

To work with an employee whose restrictions keep them from being at work every day can be frustrating, to say the least.  For employers who count on their employees to be a part of a functioning team or perform duties on their own, a wrench is thrown into every operation that involves an employee who cannot be relied upon to show up to work without notice.  Employers obviously want to show compassion for individuals who suffer from medical conditions that keep them from being at work, but at the same time, work doesn’t stop just because one employee can’t make it in.

The EEOC has not been exemplary in giving guidance to employers on how much leave is too much, when considering employees with serious medical conditions, advising employers to evaluate circumstances on a case-by-case basis.

Recently, however, federal courts of appeals have been weighing in on the employee absenteeism issue, and the rulings have been favorable for employers.  Such is the case in Lipp v. Cargill Meat Processing Corp., which was decided in January.

The plaintiff suffered from a chronic disease that made it difficult for her to walk, run or otherwise exert herself.  She was limited to working no more than eight hours a day, needed to be out of work three to four days a year to attend doctor’s appointments, and experienced flare-ups in her condition two to four times a year that led to her absences.

On the other side, Cargill was willing to accommodate all of these leaves, but also had an attendance policy that limited the number of times an employee could be out during a year with an unplanned absence.

Following a lengthy absence to take care of her mother, Lipp returned to work only to be issued a notice that she had compiled 194 absence points, and that on the next absence she would be terminated from her employment.  This warning included unscheduled absences due to her condition.  Lipp lasted approximately two weeks before her first unexcused absence, and was issued termination paperwork.

Lipp sued under both the Iowa Civil Rights Act as well as the ADA, and appealed after the district court found she did not suffer an adverse action because of her disability, and that Cargill had a legitimate, nondiscriminatory reason for terminating her employment.

Instead of making rulings on those two issues, the Eighth Circuit Court of Appeals went a different direction.  It found that Lipp was not a “qualified individual” protected by the ADA, as she could not demonstrate “at the time of her termination she could regularly and reliably attend work, an essential function of her employment.”

The Court found that Cargill maintained an attendance policy that stated “regular attendance is crucial to its operations” and enforced the policy through discipline.  The court noted that while the policy called for termination after 9 unscheduled absences in a year, Cargill allowed for Lipp to accrue 194 absence points in the previous year, and only took action after it issued her a final warning and she received her 195th point.

The Court held that the ADA does not require unlimited absences as a reasonable accommodation, and employees still must show they can perform essential job functions at the time of termination.

For those concerned that the employer may have created a practice that lulled the employee into a false sense of security by allowing her to be out for 194 unscheduled absences and terminating her on the 195th, the court held that employers should not be punished for “bending over backwards” to accommodate employees only to fire them after they can handle no more.

Another question you might have is, “Do I have to wait THAT long before I terminate the employee for so many unscheduled the absences??”  To that, we give you the patented attorney answer: It depends.  How have you treated employees previously?  How feasible is it for you to carry out operations without this employee’s regular attendance for an extended period of time?  These are just a couple of the questions that need to be evaluated.  For advice that works, contact the Wiley Law Office.