In recent administrative actions, the Equal Employment Opportunity Commission has taken the position that regular attendance is not an essential job function under the Americans with Disabilities Act. The agency views attendance as means to an end, and as long as the employee can perform the substantive job functions, the mere fact that the he or she cannot be at work on a regular basis is not a reason to deny accommodations. Employers have had a hard time swallowing this logic, and last month, the U.S. Court of Appeals for the D.C. Circuit agreed, dismissing the claim of a federal employee unable to work regular or predictable hours.

In Doak v. Johnson, the plaintiff was a civilian employee of the U.S. Coast Guard. She suffered from a variety of disabling conditions that caused her to miss a significant amount of work, with little or no predictable pattern or advance notice to her employer. She requested a series of accommodations, including a late start time, optional work on weekends to make up for time missed during the week and a telecommuting option. The Coast Guard granted some of these requests, but concluded that others were not compatible with her job requirements, and terminated her employment after her attendance did not improve. She sued under the Rehabilitation Act, which is interpreted the same as the ADA.

The D.C. Circuit affirmed dismissal of the claim on summary judgment. The court noted that under these laws, employers have discretion to determine essential job functions. In this case, the court agreed that being in the office to participate in interactive, on-site meetings fell within the essential function definition. The plaintiff’s requested accommodations amounted to a “work whenever you want” schedule and were unreasonable as a matter of law.

Federal courts have generally failed to adopt the EEOC’s nuanced distinction between job functions and job output. Courts have accepted employers’ understandable view that accommodations that remove the employee from regular workplace attendance for significant periods of time are unreasonable for the majority of jobs. These absences so affect the ability to produce meaningful work that they are unreasonable without considering hypothetical alternatives. For now at least, for most jobs employers can require regular, predictable attendance as a condition of employment or continuing employment.