In recent years, the Equal Employment Opportunity Commission has taken the position that regular job attendance may not be an essential job function under the Americans with Disabilities Act. Under the ADA, employers are required to provide reasonable accommodations to disabled applicants and employees, but only to the extent such accommodations allow the employee to perform the essential job functions. According to the EEOC, attendance is not a job function, but instead is a means by which the actual job functions are typically accomplished. If the employee can perform these actual functions without regular attendance, the employer would have to consider the accommodation request.
 
Federal courts have not been as willing as the EEOC to overlook an employee’s basic obligation to regularly come to work. Last month in an unpublished decision, Green v. Medco Health Solutions of Texas, LLC, the Fifth Circuit Court of Appeals rejected a plaintiff’s claim that attendance was not an essential function of her job. She suffered from reoccurring headaches, and was terminated for violation of the attendance policy for absences relating to her medical condition. The plaintiff contended that her employer had failed to provide reasonable accommodation by excusing the absences and waiving the policy going forward.
 
The Fifth Circuit affirmed summary judgment for the employer. Instead of addressing the EEOC’s position on attendance as an essential function, the court characterized the absences due to the headaches as a disciplinary violation, concluding that the employer is not required to waive such violations as a form of reasonable accommodation. The Fifth Circuit characterized her request for accommodation as one for “preferential treatment” that was not required under the ADA.
 
Most federal courts considering this issue are not as blunt as the Fifth Circuit. Employers can be expected to demonstrate how regular attendance is a necessary feature of the employee’s job. However, regardless of the legal standard used by the reviewing court, this is an area where employers may find that federal courts are more sympathetic to their business needs than the EEOC