Showing Up to Work: Sixth Circuit Clarifies When Regular, In-Person Attendance Is Required Under the ADA
In Popeck v. Rawlings Company, LLC, No. 19-5092 (October 16, 2019), the U.S. Court of Appeals for the Sixth Circuit affirmed summary judgment for the Rawlings Company on Popeck’s claims under the Americans with Disabilities Act (ADA), finding that regular, in-person attendance was an essential function of Popeck’s job as a claims auditor. The Sixth Circuit’s decision is noteworthy because it sheds light on how courts determine whether on-site attendance is required under the ADA.
Rawlings provides accounting and financial services to health insurers. Popeck commenced her employment at Rawlings in 2009 as a claims auditor. In that role, Popeck reviewed health insurance claims, identifying inaccurate ones and rebilling the correct insurance company. She initially excelled in her role, landing several promotions and pay raises.
In 2013, Popeck was diagnosed with irritable bowel syndrome (IBS), a digestive disease that causes severe stomach cramping and sudden diarrhea. She requested, and was granted, intermittent leave under the Family and Medical Leave Act (FMLA) to address her IBS symptoms.
The next year, senior managers at Rawlings expressed concerns about Popeck’s leadership style. Her supervisor complained that Popeck’s team members came in late, took excessive breaks, and underperformed. The supervisor also complained that Popeck herself would indulge in “‘excessive breaks.’” For these reasons, Rawlings demoted Popeck from her management position to her entry-level auditing position.
Popeck continued to use intermittent FMLA leave to address her IBS symptoms. One year, when Popeck had exhausted her FMLA leave before her annual allotment renewed, Rawlings granted Popeck an accommodation under the ADA. The accommodation allowed Popeck to come in late and leave early when her IBS symptoms flared up.
In 2015, Popeck’s work performance deteriorated and she failed to meet her performance goals. She also exhausted her annual leave, sick leave, and FMLA leave by July and again sought an additional leave accommodation under the ADA. This time, however, Rawlings denied the requested accommodation. Still, Popeck continued to miss entire days of work even though her doctor had said that she would only “‘need to come in late or leave early on occasion.’” Rawlings warned Popeck she could miss no more work until she accrued additional leave or her FMLA eligibility renewed. After the warning, Popeck arrived late four more times, and on the fourth time, Rawlings terminated her employment, citing “serial tardiness.” Popeck sued under the ADA, FMLA, Fair Labor Standards Act, and various Kentucky statutes.
The Sixth Circuit’s Analysis
The ADA prohibits employers from discriminating against a qualified individual on the basis of a disability. To assert her claims under the ADA, Popeck therefore had to demonstrate that she was a “qualified individual.” The term “qualified” means able to “perform the essential functions” of a job “with or without reasonable accommodation.” A reasonable accommodation may include a schedule modification, but employers are not required to grant such an accommodation if it would prevent an employee from performing the essential function of the job. This is because a proposed accommodation requesting the removal of an essential function is per se unreasonable.
Here, the Sixth Circuit focused on whether regular, in-person attendance was an essential function of Popeck’s job. The court recognized that claims auditors such as Popeck had to work on-site from secured computers in Rawlings’s offices. Rawlings flatly prohibited its claims auditors from working remotely because of the “‘large volume of confidential and HIPAA protected personal information’” in the claims they reviewed. Thus, the court dismissed Popeck’s argument that regular, in-person attendance was not an essential function because other Rawlings employees, such as IT personnel, were permitted to work remotely. According to the court, whether IT workers were allowed to work remotely was irrelevant because they were not subject to the same on-site requirements as claims auditors.
Popeck is largely a positive decision for employers, but it is important to recognize the limitations of its holding. In finding that regular, in-person attendance was an essential function of Popeck’s job, the Sixth Circuit recognized that it was not an essential function of all jobs. Had Popeck worked in IT, the analysis might have been different. Because Popeck’s job as a claims auditor required that she be physically present in the office and Rawlings did not allow other claims auditors to work remotely, a federal district court granted summary judgment in favor of Rawlings and the Sixth Circuit affirmed the judgment.
Employers determining whether regular, in-person attendance is an “essential function” under the ADA may want to keep in mind that the analysis may involve taking into consideration particular facts, job descriptions, and other circumstances. Such a determination may become more complex as remote working policies gain traction and evolve, and technological advances improve the ability to work off-site.