Although Regular Attendance May Be an Essential Function, Leave May Still Be Required

The U.S. Court of Appeals for the Sixth Circuit rejected an employer’s argument that the employee was unable to perform any of her essential job functions, including attendance, as of the date of her termination, and was therefore not entitled to the protections of the Americans with Disabilities Act. As the Sixth Circuit noted, “To accept [the employer]’s supposed rule, an employee requesting medical leave could always be terminated if she were unable to work at the time of her request. But that cannot be the case because … medical leave can constitute a reasonable accommodation under the ADA.”

In Blanchet v. Charter Communications, LLC, the employee suffered from post-partum depression. Upon exhausting her FMLA leave, she requested an additional 60 days of leave, but was instead  terminated because she was unable to perform her job duties, including attendance. As the Sixth Circuit noted, however, the employee was not requesting an accommodation that would permanently remove attendance as an essential function of her position (such as telework or part-time work). Rather, her request for leave was a temporary accommodation that would hopefully enable her to fulfill the attendance requirement once the leave was over. Thus, by denying the request for leave and terminating the employee, the employer had failed to provide a reasonable accommodation.

So while employers can certainly establish regular and predictable attendance as an essential job function of certain jobs, as we recently discussed in our February 2022 E-Update, they must recognize that a temporary leave of absence may be a reasonable accommodation.