“The ADA Does Not Protect Persons Who Have Erratic, Unexplained Absences, Even When Those Absences Are a Result of a Disability.”

So said the U.S. Court of Appeals for the Seventh Circuit, in finding that an employee was not qualified for her job based on attendance and performance reasons unrelated to her disability.

Background of the Case. In Stelter v. Wisconsin Physicians Service Ins. Corp., prior to sustaining a back injury at work, an employee was counseled for her attendance (for which she had repeatedly failed to provide notice) and performance issues. These issues continued following her return to work with no restrictions, and she was further counseled, placed on a performance improvement plan and then terminated. She sued, alleging discrimination and retaliation under the Americans with Disabilities Act.

The Court’s Decision. Stating that “the ADA does not shelter disabled individuals from adverse employment actions,” the Seventh Circuit found that the employee was not qualified for her job because of the documented attendance and performance issues, which predated her disability. It rejected the employee’s argument that the stated termination reasons were pretext for discrimination, and found that the employer honestly believed in the reasons. The Seventh Circuit went on to note that erratic absences for which no notice was provided – even if caused by a disability – are not protected by the ADA, asserting, “The fact is that in most cases, attendance . . . is a basic requirement of most jobs.”

Finally, the Seventh Circuit also rejected the employee’s claim that the employer had failed to provide reasonable accommodations because she failed to show that she had requested any accommodation. As the Seventh Circuit stated, “A plaintiff typically must request an accommodation for [her] disability to claim that [s]he was improperly denied an accommodation under the ADA.” (Emphasis in original).

Lessons for Employers. This case offers several points of significance to employers. First, an employee can be held accountable for providing proper notice of absences, even if the absences are due to a disability. Second, it is important to document performance and attendance issues, as such documentation will support an employer’s defense against discrimination claims. And third, an employer is not required to engage in an interactive discussion about reasonable accommodations unless an accommodation is requested or, under Equal Employment Opportunity Commission guidance, it is clear that the employee requires one.