Excusing Unpredictable Attendance Is Not a Reasonable Accommodation

By Fiona W. Ong, Shawe Rosenthal LLP

Although some employers may feel like they have to tolerate a lot as a reasonable accommodation under the Americans with Disabilities Act, one thing that they may not have to allow is unpredictable attendance, as the U.S. Court of Appeals for the Tenth Circuit recently reaffirmed.

In Lamm v. Devaughn James, LLC, the employee, who had mental health conditions and who had attendance issues, requested an accommodation to be allowed to work half-days on the days that she experienced intense anxiety. Her request was denied and she was subsequently terminated for attendance violations unrelated to her anxiety. She sued, alleging failure to accommodate under the ADA, among other things.

In order to be protected under the ADA, the employee must be a “qualified individual,” meaning that they can perform the essential functions of the job, with or without a reasonable accommodation. In evaluating failure to accommodate claims, courts may apply a two part analysis – first, whether the employee is able to perform the essential functions of the job and, if not, then whether any reasonable accommodation would enable them to do so.

The Tenth Circuit found that, because she was away from work excessively and often without warning, the employee was unable to perform the essential function of regular and predictable job attendance, as required for her position as a paralegal who was required to timely perform administrative and client-facing tasks. The Tenth Circuit further found that there was no reasonable accommodation that would enable her to perform that essential job function; her requested accommodation of sporadic absences without warning would not enable her to meet that requirement and was therefore not reasonable.

Now, regular and predictable attendance is not necessarily an essential job function for all jobs. In order to meet the showing that it is, an employer must be able to demonstrate that the requirement is job related, uniformly enforced, and consistent with business necessity. But if they can establish this, then they do not have to provide unpredictable leave as an accommodation.