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Ink Spilt, Views Split on Attendance as Essential Job Function under ADA

What better place to contemplate the ADA issue of whether coming to work is an essential function of a job than at the recent Disability Management Employer Coalition (DMEC) Compliance Conference, an annual three day seminar for those who toil in the depths of disability leave management and love every minute of it?

It all began with a discussion of EEOC v. Ford Motor Company, the Sixth Circuit en banc decision just a few weeks ago, rejecting the EEOC’s claim that Ford denied a resale buyer a reasonable accommodation by not letting her work from home up to four days per week.

“Is regular and predictable on-site job attendance an essential function (and a prerequisite to perform other essential functions) of [the] resale-buyer job? We hold that it is,” concluded the Sixth Circuit, or at least the eight judges in the majority opinion.  Observing that it was not the first court to conclude that regular and predictable attendance is an essential function, the court added: “We do not write on a clean slate. Much ink has been spilled establishing a general rule that, with few exceptions, ‘an employee who does not come to work cannot perform any of his job functions, essential or otherwise.’” (citations omitted).

The ink the EEOC spilt on that issue espouses precisely the opposite view. In its 2002 Guidance on Reasonable Accommodation and Undue Hardship under the ADA, in footnote 65, the EEOC said: “Certain courts have characterized attendance as an ‘essential function’… Attendance, however, is not an essential function as defined by the ADA because it is not one of ‘the fundamental job duties of the employment position’…. As the regulations make clear, essential functions are duties to be performed.” (citations omitted).

Speaking at the DMEC Conference, EEOC Commissioner Victoria A. Lipnic cited the EEOC’s official position in its 2002 Guidance, but noted that her personal opinion is that attendance is an essential function.

The 25th anniversary of the ADA is just weeks away. Enough ink has been spilt on the issue of whether showing up for work is an essential function of a job. Woody Allen observed that 80% of life is “showing up.” Shouldn’t the same be said for work?

Jackson Lewis P.C. © 2022National Law Review, Volume V, Number 117
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About this Author

Michael Soltis, Jackson Lewis Law Firm, Disability and Health Management Attorney
Office Managing Principal and Office Litigation Manager Stamford

Michael J. Soltis is Office Managing Principal and Litigation Manager of the Stamford, Connecticut, office of Jackson Lewis P.C. He has represented employers in a wide range of employment and labor matters for more than 30 years.

Mr. Soltis has advised on and litigated matters involving just about every type of employment claim, including discrimination claims, family and medical leave claims, public policy and whistleblower claims, contract claims, and common law employment claims. He has litigated cases in state court and...

203-961-0404
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