In a recent decision, the federal First Circuit Court of Appeals dismissed an employee’s claim for disability discrimination under the Americans with Disabilities Act (ADA). The employee was unable to show that she was a qualified individual with a disability under the ADA because the employee failed to satisfy an essential job function — attendance. Colón-Fontánez v. Municipality of San Juan, 660 F.3d 17 (1st Cir. 2011).

Though this was a positive result for the employer, federal courts in California often take a more liberal approach, and the same result may not occur in a California state court. There are situations where the disability itself is causing the absenteeism and a reasonable accommodation, such as working from home, may allow the employee to perform the essential functions of his or her job.

Frequent Absences Pre-Dated Employee’s Illness

The employee, Colón-Fontánez (Colón), held various positions for the municipality of San Juan, Puerto Rico. In 2005, she was an auction officer for the municipality and responsible for analyzing and processing bids and proposals. The Auction Officer was required to be physically present in the Auction Department. Auction papers could not be removed from the premises.

In 2005, Colón was diagnosed with fibromyalgia. During that year, she was absent 30 percent of her work time. However, Colón had a problem with absenteeism long before her diagnosis; a problem that dated back to 1992:

• 1992: denied additional sick leave because of a pattern of requesting advances on leave
• 1993: absent 20 percent of the time
• 1994: absent 59 percent of the time
• 1995: three-month unpaid leave
• 1996: three-month leave for a foot injury
• 1997: three-month unpaid leave
• 2000: absent 23 percent of the time
• 2001: absent 25 percent of the time
• 2002: absent 22 percent of the time
• 2003: absent 25 percent of the time
• 2004: absent 19 percent of the time

In the years following Colón’s diagnosis and preceding her lawsuit, her absenteeism increased. She was absent 59 percent of the time in 2006 and 56 percent of the time in 2007. She took an unpaid, three-month leave in 2008.

Employee Wanted Reserved Parking Spot

Colón submitted multiple requests for accommodation over the years, such as requests for time off, which the municipality granted. But when she submitted a request for reserved parking space closer to the building as a reasonable accommodation, the municipality denied it, citing parking restrictions.

However, officials informed Colón that if she had a handicapped identification pass, she could certainly use any of the six handicapped spaces. Colón did not respond to the municipality’s reply, but subsequently sued her employer for violation of the Americans with Disabilities Act (ADA), alleging, in part, that the municipality discriminated against her by denying her reasonable accommodation request for a closer parking spot.

Employee Could Not Perform the Essential Functions of the Job

The ADA prohibits employers from discriminating against a qualified individual with a disability. Discrimination includes failure to provide reasonable accommodation. A qualified individual is one "who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires."

The court ruled that Colón was not a qualified individual covered by the ADA because she could not meet the essential job requirement of attendance. The court stated that regular attendance is an essential function of any job. In this particular case, the job description, municipal regulation and testimony from supervisors confirmed that physical presence at the job was an understood expectation and requirement of the position. The work could not be performed from home.

Because Colón was not a qualified individual with a disability, the court ruled, she was not entitled to protection under the ADA and dismissed her reasonable accommodation claim.

Would California Courts Reach the Same Verdict?

A federal court in California reached a different ruling based on facts that showed the employee’s position would enable her to perform the essential functions of her job from home. Courts in California may not agree with most other circuit courts’ decisions that regular attendance at the office is an essential function of any job. Instead, the specific position must be examined.

In Humphrey v. Memorial Hospitals Association, 239 F.3d 1128 (2001), Carolyn Humphrey worked as a medical transcriptionist for a hospital. She consistently received excellent performance reviews, but then began having attendance problems and was disciplined.

Humphrey was diagnosed with Obsessive Compulsive Disorder. This caused her to engage in a series of obsessive rituals that hindered her ability to arrive at work on time. Her employer offered her the ability to have a flexible start time. When Humphrey’s attendance problem continued, she asked to work from home, as many transcriptionists did, as a further accommodation. The hospital denied the request, citing its policy of refusing work-at-home requests for employees who were involved in a disciplinary process. Eventually, the hospital terminated Humphrey for poor attendance.

The Ninth Circuit ruled that "regular and predictable attendance is not per se an essential function of all jobs." The court then went on to state that "working at home is a reasonable accommodation when the essential functions of the position can be performed at home and a work-at-home arrangement would not cause an undue hardship for the employer." In this particular case, the court found that physical attendance was not an essential function of the job.

Because federal and state courts in California often give a more expansive interpretation of disability laws, employers in California face more complicated legal guidelines than employers elsewhere.

Best Practices:

• Ensure that job descriptions specifically outline the essential functions of each position.
• Include in the job description that the position requires regular attendance.
• If the position requires that the work be performed only at the employer’s site (e.g., not from home), specify that in the job description or other employer policies.
• Engage in a timely, good faith interactive process with employees requesting accommodations for disabilities.
• Never automatically rule out any accommodation without considering the specifics of the job duties. Be open to suggestions and document the process.