Regular attendance is an essential job function at most companies, so employers may not have to accommodate disabled workers that cannot regularly attend work.

Americans with Disabilities Act (ADA)

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 that regular attendance is essential. Thus, employees who cannot regularly attend are not entitled to an attendance accommodation.

Sixth Circuit Court

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.” See EEOC v Ford Motor Co. (2015)

It seems the Sixth Circuit is in line with the established precedent. 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 (2018)

What does that mean for employers? If regular attendance is essential, job descriptions and handbooks must explicitly state the requirement. 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.

Employment Discrimination Laws

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. Contact Fausone & Grysko, PLC today at (248) 380-0000 or visit us online at www.FB-Firm.com.