Attendance as Essential Function of Job?
There has always been a question as to whether attendance at work is automatically considered an essential function of every job. Court decisions have been confusing at best especially when the question focuses on working from home and a requirement that an employee must come to work. Several recent Federal Court of Appeals decisions have begun to show a consensus that an employee must comply with company attendance policies even if the employee suffers from a disabling condition.
Recent decisions from the Second, Fifth and Eighth Circuit Court of Appeals have generally found that employees who claimed disability discrimination were still lawfully terminated for violation of attendance policies of the company. While these decisions acknowledge that attendance at work is important, they also involved cases where there was excessive absenteeism and tardiness such that the Court could easily see the need for terminating the employee because of his/her conduct. These cases also acknowledge that a leave of absence to allow an employee to heal was a reasonable accommodation, however, the company could require appropriate attendance after the employee returned to work.
Wisconsin takes a very liberal view of attendance requirements and requires employers to exercise “clemency” and “forbearance” when dealing with employee absenteeism issues. Employers must extend clemency or forgiveness to employees who fail to comply with attendance policy requirements if it is during the healing process from a disabling condition. Employers are also required to show “forbearance” or patience in analyzing whether or not an employee needs additional time off before being able to return to work and be required to follow company attendance policies.
While several Federal Courts have issued very favorable decisions regarding compliance with attendance policies, Wisconsin employers need to be careful how they structure a requirement for a disabled employee to come to work and comply with attendance requirements.