Is actually being able to work an essential function of most jobs under the Americans with Disabilities Act? On its face, the answer seems obvious, but in practice it has been the subject of considerable litigation. Last week, the Tenth Circuit Court of Appeals affirmed dismissal of an ADA failure to accommodate claim filed by an employee who admitted that she was unable to work for a large percentage of the year.
In Lamm v. Devaughn James, LLC, the plaintiff was a case manager for a personal injury law firm. She suffered from extreme anxiety, and as a result requested the ability to work half days when experiencing anxiety. The employer denied the request on the basis that the job required regular attendance, and that the plaintiff’s excessive absences resulted in necessary work not being performed. The employer eventually terminated her for absenteeism. The district court agreed with the basis for this decision, dismissing the case on summary judgment.
On appeal, the Tenth Circuit agreed. The court said that regular and predictable attendance was an essential function of the job, and that the employer had demonstrated that the work could not be performed without the employee working a regular full-time schedule. In prior litigation, the Equal Employment Opportunity Commission has taken the position that regular attendance is not in and of itself an essential job function. Rather, it is a means by which the actual job duties are accomplished. In other words, the EEOC says that an employee may be able to perform essential job functions even if he or she misses large amounts of working time.
The Tenth Circuit disagreed, joining most other federal courts in holding that regular and predictable attendance is an essential job function. In this case, the employee missed so much work that allowing her to work half days when she experienced anxiety would not be an effective accommodation. Apparently, the plaintiff in this case was not eligible for FMLA leave. If she had been eligible, she may have been entitled to intermittent leave when experiencing anxiety.