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Sixth Circuit Says Attendance Was Essential Function of Job

    Client Alerts
  • November 08, 2019

If asked to describe the essential functions of a given job, most employers would include actually showing up to work as a critical component. In recent years the Equal Employment Opportunity Commission has taken the position that attendance in and of itself is not a job function, but rather is a means by which the work is accomplished. Most federal courts reviewing this issue have rejected the EEOC’s position, finding that regular attendance is an essential job function. This majority view was reflected in a recent unpublished decision from the Sixth Circuit Court of Appeals.

In Popeck v. Rawlings, Co., LLC, the plaintiff suffered from irritable bowel syndrome (IBS), a condition that caused her to miss more than half of her expected working time as an auditor. She exhausted FMLA leave, and the employer eventually denied additional leave as an ADA accommodation on the basis that she was not a qualified disabled individual because she could not perform the essential functions of her job. The auditing job required visits to clients’ facilities and could not be performed remotely due to confidentiality issues. The employer demoted and eventually terminated the plaintiff due to these attendance issues.

The Sixth Circuit affirmed dismissal of the lawsuit. The court first noted that for this position, regular, in-person attendance was an essential job function. The plaintiff’s request for occasional flexibility in terms of attendance and arrival times was not effective because it did not address the fact that she was missing more than half of her scheduled working time. The court also noted that a number of the absences were not related to the IBS or other health reasons.

For some jobs, highly flexible hours or remotely working a majority of the time might be reasonable accommodations. However, for most positions, federal courts will back the employer’s contention that employees needs to be at the worksite regularly during their scheduled hours.