“Regular and reliable job attendance is a necessary element of most jobs.”
So says the U.S. Court of Appeals for the Eighth Circuit, in rejecting a locomotive engineer’s failure to accommodate claim under the Americans with Disabilities Act, while also finding that providing an accommodation in the past does not necessarily render the accommodation reasonable.
In Higgins v. Union Pacific Railroad Co., the employee suffered several on-the-job injuries, resulting in a 1992 settlement agreement that allowed him to “lay off” whenever his back bothered him. He subsequently requested and received a work restriction that he would not go out on a job assignment more than once every 24 hours. Due to a manpower shortage starting in 2013-14, the employer began holding employees accountable for attendance. Because the employee had missed 26% of his scheduled shifts, he was required to provide additional information regarding his condition. His doctor stated that he continued to require at least 24 hours off between shifts and also to be able to lay off as needed. It was determined that these accommodations could not be provided, based on his work responsibilities, and he was terminated. He then sued for violations of the ADA.
The Eighth Circuit found that, contrary to the engineer’s argument, attendance was an essential function of the job, as evidenced both by the job description, which listed attendance as an essential function, and the attendance policy, which required employees to be “available to work [their] assignment whenever [they are] scheduled to work.” Under the ADA, employers are not required to excuse employees from performing the essential functions of their job.
The Eighth Circuit also found that the requested accommodations “essentially amount to an ‘unlimited absentee policy,’ which is unreasonable as a matter of law.” Of particular interest, the Eighth Circuit found that the fact the employer had previously provided an accommodation that allowed him to miss a large percentage of his shifts was not determinative. As the Eighth Circuit noted, “If an employer bends over backwards to accommodate a disabled worker . . . it must not be punished for its generosity by being deemed to have conceded the reasonableness of so far-reaching an accommodation.”