Well, it could.
But, will the plaintiff win? That’s a different story.
In this case, an employer accommodated an employee with chronic back pain for a long time. How long? Like 22 years. That’s almost as long as it’s been since the Dallas Cowboys last won a Super Bowl. Wow!
The company bent over backward. For a while there, the company permitted the employee not to go out on a job assignment more than once every 24 hours. And the employee missed a lot of work. In 2012 and 2013, the employee laid off 24% of the shifts that he was called to work.
In 2014, the employee asked his employer to accommodate his back pain by allowing him to take time off “as necessary” and receive “24 hours of rest per shift (between shifts).”
And that, my friends, was the final straw. The company denied the request. So, the employee sued for, among other things, failure to accommodate under the Americans with Disabilities Act.
Was regular attendance an essential function of the job?
One of the critical elements that a plaintiff must establish when alleging an ADA failure-to-accommodate claim is that he is qualified to perform the essential functions of his job with or without reasonable accommodation.
Like other courts, the Eighth Circuit Court of Appeals recognizes that essential functions of the job are `fundamental job duties,’ and the employer’s judgment as to what is essential is pretty darn important. That’s usually manifested in job descriptions and the amount of time spent performing a particular job.
Generally, regular attendance is an essential job function. But, in this particular case, the employer was able to back that up. The plaintiff’s job description listed attendance as an essential job function. Plus, the company repeatedly warned the plaintiff about his poor attendance. With these boxes checked, the court easily concluded that attendance was an essential function of the job.
Are time off “as necessary” and “24 hours of rest per shift (between shifts)” reasonable accommodations?
Yeah, no.
Here’s why according to the Eighth Circuit:
First, [the plaintiff’s] requested accommodation is unreasonable because it would require [the defendant] to reassign other [employees] to shifts that they would not have otherwise been scheduled to work….Second, and more importantly, [the employee’s] requested accommodation essentially amounts to an “unlimited absentee policy,” which is unreasonable as a matter of law….The fact that [the defendant] previously accommodated [the plaintiff’s] back pain by allowing him to miss a large percentage of his shifts does not create a material question of fact regarding the reasonableness of his newly requested accommodation to lay off as necessary and receive 24 hours off between every shift.
Got all that?
Let’s break it down with some employer takeaways:
- An employee must be able to perform the essential functions of the job with or without a reasonable accommodation.
- The employer generally controls what functions of the job are essential, but should document that in a job description, collective bargaining agreement, or other paperwork. Plus, the company should counsel and discipline employees who fail to diligently perform those essential functions.
- Indefinite leave, unlimited absences and the like are not reasonable accommodations.
- Dallas won’t win the Super Bowl this year. Again.