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Eighth Circuit Says ADA Does Not Require Waiving Attendance Policy

    Client Alerts
  • January 09, 2019

Job-protected leave continues to be the most common accommodation requested by employees under the Americans with Disabilities Act. For employers, the question remains at what point does the amount of work missed end the company’s obligation to provide additional leave? Unlike the FMLA, the ADA has no maximum leave period, and employers are left to try to guess when the recurring requests for time off become an undue hardship. Last month, the Eighth Circuit Court of Appeals provided some guidance to employers by concluding that extended periods of inability to work do not constitute a required ADA accommodation.

In Lipp v. Cargill Meat Solutions Corp., the plaintiff missed 195 days of work in a single year due to a combination of FMLA leave to care for a sick relative as well as her own lung condition. When she continued to miss work after expiration of FMLA leave, the employer terminated her for excessive absenteeism. She sued, claiming failure to allow additional absences as an ADA accommodation. 

The Eighth Circuit affirmed dismissal of the claim. The court first concluded that regular attendance was an essential function of the plaintiff’s production job. She was not a qualified protected individual under the ADA because she was unable to perform her job when she could not come to work. Next, the court said that an accommodation that simply seeks the ability to miss work is not a form of ADA accommodation because it is not intended to facilitate performance of such job functions.

The EEOC takes the position that attendance is not an essential job function but instead is merely a means by which such functions are usually performed. The agency also says that disabled employees are entitled to job-protected leave up to the point where the employer can demonstrate an undue hardship. In recent months, several federal appellate courts have taken a much harder line with regard to leave requests. Depending on where the individual works, employers may be able to deny extended leave requests without the need for a detailed analysis of the effects of the absences on the company.