ADA: Employees Who Do Not Show Up Are Not Qualified for the Position
April 15, 2013

If an employee has an established medical condition, employers tend to be gun shy about disciplining the employee for absences, fearing that the employee may bring a complaint for failure to accommodate under the Americans with Disabilities Act ("ADA"). This fear is well-founded based on the employee protections provided by the ADA and pertinent state law.

However, employers' hands are not completely tied when dealing with a chronically absent employee with a known medical condition. A recent decision by a U.S. District Court in the Fifth Circuit has held that attendance can be an essential function of a position. Therefore, an employee who cannot meet employer attendance requirements might not be a "qualified employee" under the ADA and will not qualify for protection under the ADA. Although not binding outside of the Fifth Circuit, the court's decision gives employers clear direction as to how they should address absenteeism under the ADA.

Termination Based On Chronic Absences

In Fuentes v. Krypton Solutions, LLC, the District Court for the Eastern District of Texas held that an employee was not "qualified" for his position due to his chronic absences and, therefore, could not support his ADA claim after he was terminated for these absences. Clarence Fuentes was a quality control employee at Krypton Solutions, LLC. In 2009, Fuentes was diagnosed with diabetes, which he was able to get under control shortly after its diagnosis.

During 2010, Mr. Fuentes was absent from work 40 times. Although Fuentes provided medical excuses for many of his work absences, none of these medical excuses were related to diabetes. As a result, Fuentes was terminated for excessive absences and tardiness.

Fuentes subsequently sued under the ADA, claiming that the Company discriminated against him on the basis of his disability and failed to provide reasonable accommodation. Krypton Solutions was granted summary judgment based on its argument that Fuentes was not a "qualified individual" under the ADA.

Regular Attendance Is An Essential Job Function!

Krypton Solutions argued that Fuentes was not eligible for ADA protection because he was not a "qualified" quality control employee due to his inability to perform an essential function of the position-regular attendance. In response, Fuentes argued that regular attendance was not required for him to adequately perform his job duties.

In determining whether attendance was an essential job function, the Court examined Fuentes' daily job duties. As a quality control employee, Fuentes was required to inspect and test computer boards, visually inspect computer boards, retrieve paperwork from engineers, review engineering records for accuracy, deliver these records to other personnel, interact with co-workers, and deliver computer boards for testing and shipping.

Fuentes admitted that he would not be able to perform any of these duties remotely. However, Fuentes argued that his satisfactory performance evaluations indicated that he was able to perform these job duties despite his absences. The Court disagreed, citing Fuentes' admission that these job duties could only be performed in person. The Court ultimately found that Fuentes could only be protected under the ADA if he could perform the essential functions of the job with or without reasonable accommodation. Because regular attendance was an essential function, and because he could not meet this job requirement, Fuentes was not a "qualified employee" under the ADA. Therefore, the Court dismissed Fuentes' complaint. Although leave may sometimes be a reasonable accommodation, the Court specifically noted that indefinite leave is not a reasonable accommodation under the ADA.

The Take-Away

The Fuentes court tells us that if your employee cannot show up for work, and in-person attendance is necessary to perform the job, he or she is not a "qualified employee" and is not protected by the ADA. However, employers should always pause and examine the surrounding circumstances before taking action against an employee who has a documented medical condition. Employers should review the day-to-day job duties at issue and consider the following:

  • What job duties can only be performed in person?
  • What job duties require face-to-face interaction between employees?
  • What duties require physical examination or manipulation?
  • Can absences be predicted with any accuracy?
  • Can an employee prepare for absences so that they can perform job duties remotely when unable to attend work in person?

The courts recognize that some jobs still must be performed in person. If an employee with a medical condition exhibits attendance issues, employers should prepare for disputes in advance by establishing which duties must be performed in person and on-site. Employers should also insist that employees provide medical documentation for absences whenever possible.

Finally, employers should remember to evaluate whether the employee is eligible for intermittent or reduced schedule leave under the Family and Medical Leave Act, or whether state law provides similar leave as a reasonable accommodation. In short, although the Court's analysis is a welcome development under the ADA, each circumstance must be independently analyzed.

If you have any questions regarding this article, please contact your Davis & Kuelthau attorney.

 

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