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ADA: Ability to Perform Essential Functions Should Be Measured at Time of Adverse Action, Not After Course of Treatment

The Seventh Circuit recently addressed an employee’s ability to perform the essential functions of a position, for purposes of determining whether the employee is “qualified” under the Americans with Disabilities Act (“ADA”). The court held that an employee’s ability to perform the essential functions of the position must be determined at the time of the adverse action, and not after employee has the benefit of any subsequent course of treatment.

Attendance Is an Essential Function

In Basden v. Professional Transportation, Inc., the Seventh Circuit reviewed an ADA complaint alleging wrongful termination and failure to accommodate. The Seventh Circuit held that the employee was not “qualified” under the ADA because she was unable to meet the company’s attendance requirements. Therefore, the ADA claims were dismissed. The complaint also alleged interference with the Family and Medical Leave Act (“FMLA”) rights. The FMLA claims were dismissed without much analysis because the employee had not worked for the company for the requisite 12 months.

In 2007, Terri Basden was employed as a dispatcher by Professional Transportation, Inc. (“PTI”), a ground transportation provider for railroads. Like all PTI employees, Basden was subject to a no-fault attendance policy which included the following: a verbal warning after a fifth incident; a written warning after a sixth incident; a 3-day suspension after a seventh incident; and termination after an eighth incident.

In January 2008, Basden experienced dizziness and a fall while at home, after which a CT scan indicated that Basden might have Multiple Sclerosis (“MS”). Basden was absent for several days as a result of this fall, which constituted a third incident under the PTI attendance policy. Basden already had two prior incidents, which were unrelated to any medical condition.

Over the course of the next few months, Basden had incurred fourth, fifth, and sixth incidents under the attendance policy, culminating in a verbal warning and a written warning. Basden provided a note after each of these incidents but was not yet diagnosed with MS. At this time, Basden was assigned “closer” duties, requiring more typing than a dispatcher role. However, Basden began to experience numbness in her hands and asked to be relieved from her closer duties. Basden was moved back to a dispatcher position, but eventually was returned to her closer duties. Basden then requested a part-time position, which eventually was granted.

Basden was absent again, resulting in a seventh incident and a three-day suspension. Basden requested a 30-day leave of absence, an employment benefit available to PTI employees who have completed one year of employment. However, Basden was 2 weeks shy of her one-year anniversary. As such, PTI denied her request. Basden failed to return to work following her suspension and was terminated. Basden sued PTI under both the ADA and FMLA.

Ability to Perform Essential Functions Evaluated at Time of Adverse Action

Basden was required to prove to the court that she was qualified to perform the essential functions of her job with or without reasonable accommodation. The court stated, “[a]n Employer is generally permitted to treat regular attendance as an essential job requirement and need not accommodate erratic or unreliable attendance.” The court further stated that if a disability prevents an employee from coming to work regularly, that employee cannot perform the essential functions of his or her job and is not a “qualified individual” under the ADA. Basden failed to present sufficient evidence that she indeed was “qualified” because she was unable to meet PTI’s attendance requirements.

When Basden was terminated, she had not yet been diagnosed with MS. Thus, Basden had not begun treatment for MS. Basden argued that she should have been given the opportunity to begin treatment so that her symptoms would “level off,” with the hope that her attendance eventually would improve. Basden also argued that she was able to return to the workforce (for another employer) during the 18 month period subsequent to her termination from PTI.

The Seventh Circuit disregarded Basden’s arguments that she subsequently “became” a qualified individual under the ADA because she was able to return to the workforce after beginning an appropriate treatment plan for MS. The court stated that the relevant question was the employee’s ability to perform the essential functions of the position at the time of the adverse action, not at a future point in time. When Basden was terminated for poor attendance, she had no final MS diagnosis, no prescribed treatment plan, and no anticipated date by which she could return to regular attendance, if she had been granted leave. Therefore, Basden was not a “qualified individual” at the point of termination. The court further determined that Basden would not have been able to prove that she was a qualified employee after a course of treatment because her poor attendance at a subsequent employer resulted in her termination.

Basden also claimed that PTI failed to engage in the interactive process and provide her with a reasonable accommodation vis-à-vis the 30-day leave which she requested. The court stated that if Basden had been a qualified employee, PTI probably would have violated the ADA’s interactive process requirements. However, PTI was not required to enter into the interactive process with Basden because she was not a qualified individual under the ADA.

The Takeaway

The characterization of regular attendance as an “essential function” is not particularly new. The Seventh Circuit previously stated that even if an employee’s poor attendance is directly related to a disability, that employee might not be a “qualified individual” under the ADA. However, the Basden court has now clarified that the ability to perform an essential function, including attendance, must be measured at the time the adverse action is taken and not after the employee has received a diagnosis and undergone a course of treatment.

The court explained what information an employer must consider with respect to an employee seeking a reasonable accommodation. Employers should include the following inquiries when approaching the interactive process:

  • Has the employee provided documentation of a diagnosis?
  • Is there a prescribed course of treatment?
  • Can the employer reasonably accommodate the employee while he or she receives treatment?
  • Is there an anticipated date by which the employee can return to work?
  • Is the anticipated date reasonable and likely (as opposed to a re-evaluation date)?

The Basden case represents a powerful tool for employers, but should be viewed with some hesitation. The result may have been different had Basden done a better job communicating her condition to her employer. Also it appears that the court placed some significance on the fact that she ultimately was not successful in becoming a “qualified individual” based on her poor attendance and eventual termination from subsequent employment. Had her treatment been successful in terms of enabling her to regularly engage in employment, the outcome of this case may have been different. In addition, the Seventh Circuit emphasized that a leave of absence in some cases will constitute a reasonable accommodation under the ADA. Employers should take the court’s comments as a warning: If an employee is “qualified” under the ADA, a leave of absence should be considered as a reasonable accommodation.

Employers in many states, such as Wisconsin, already have addressed leaves of absence as potential reasonable accommodations. However, the Seventh Circuit’s advice indicates that these leaves should be offered to employers covered by the federal ADA, in addition to state law.

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