Depending on the circumstances, regular attendance may be an essential job function, so an employer may not have to accommodate a disabled worker that cannot regularly attend work.
Under the Americans with Disabilities Act (ADA) employers are required to provide reasonable accommodations to disabled workers. However, what's reasonable to one person may be unreasonable to another-meaning that issue is frequently litigated. Typically, an individual with a disability is "qualified" if, with a reasonable accommodation, he or she can perform essential job functions.
The Eight, Second, Fifth, and Ninth Circuits, have all held, in various cases, that regular attendance is essential and thus, employees who cannot regularly attend are not entitled to an attendance accommodation.
But what does that mean for those of us in the Sixth Circuit, which encompasses Michigan, Ohio, Kentucky, and Tennessee? In prior cases, the Sixth Circuit held that "regular, in-person attendance is an essential function . . . of most jobs." EEOC v. Ford Motor Co., 782 F.3d 753, 762-63 (6th Cir. 2015). On its face, it would seem that the Sixth Circuit is in line with the other circuits mentioned above. But the devil is in the details. In a recent case, the Sixth Circuit held that essential job functions require a fact-intensive inquiry, indicating that courts favor a case-by-case approach, rather than a bright-line rule. See Hostettler v. College of Wooster, 895 F.3d 844, 854, 856 (6th Cir. 2018).
What does that mean for employers? If regular attendance is an essential function, then that should be articulated in employee job descriptions and handbooks. Courts will look to see if a business can show why an employee would be unable to complete essential job functions without being present on a regular basis.
As always, employment discrimination laws constantly change with each case-law variation. A knowledgeable employment discrimination attorney can help keep your business up to speed. Whether you're trying to stay out of court or are already knee deep in litigation, consider contacting an employment law attorney to advise on a course of action that will protect your rights.