Woody Allen is credited with saying that 80% of success is showing up. That could certainly apply to the workplace. To be fair though, he made that comment in 1977 before remote work, telecommuting, video conferencing and similar technological advances were in existence. It’s clear that some jobs do not require physical presence on the employer’s premises. Working mothers and employees with medical issues have been known to request work-from-home arrangements as reasonable accommodations of a disability. Is remote work a reasonable accommodation under the ADA? Get ready for perhaps the most infamous lawyer response: “It depends”. Is attendance an essential job function? Typically, yes. On the other hand, if an employee with a disability can show that the essential job functions can be done off premises, then physical presence might not be an essential job function. So what’s an employer, confronted with such a request, supposed to do? This week we might be able to get some guidance from the 6th Circuit Court of Appeals.
The case is Popeck v Rawlings Company, LLC No. 19-5092 (October 16, 2019). Here’s what went down:
Rawlings provides accounting and financial services to health insurers. Adrianne Popeck began working for Rawlings in 2009 as a claims auditor. She reviewed claims, identified inaccurate ones and re-billed the correct insurance company. Everything went very well in the beginning, and Ms. Popeck obtained several promotions and pay raises. Then, in 2013, she was diagnosed with irritable bowel syndrome (IBS). She requested and received intermittent FMLA leave to address her symptoms. In 2014, Ms. Popeck held a managerial position, which required her to supervise a team of employees. Senior managers expressed concern, and her supervisor claimed that her team members often arrived to work late, took excessive breaks and under-performed. The supervisor also claimed that Ms. Popeck herself took “excessive breaks”. Rawlings therefore demoted her from her managerial position, to her entry-level position as a claims auditor. Ms. Popeck continued to use intermittent FMLA until she exhausted it one year later, but before her annual allotment renewed. Rawlings then granted her an ADA accommodation that allowed her to either arrive late or leave early when she experienced symptom flare-ups. Things unfortunately did not improve for Ms. Popeck.
In 2015, she exhausted her annual leave, sick leave and FMLA leave by July. She again requested an ADA accommodation. This time however, Rawlings denied the request. While her doctor said she would only “need to come in late or leave early on occasion”, she continued to miss whole days of work, at which point, her employer warned her that she could not take off any more days until either she accrued more leave or her FMLA leave renewed. After four more latenesses, Rawlings terminated her employment. As you can probably guess, Ms. Popeck sued, alleging violations under FMLA, ADA, the FLSA and various state laws. The United States District Court (i.e. the trial court) granted summary judgment to Rawlings, thus dismissing Ms. Popeck’s claims. The 6th Circuit Court of Appeals affirmed the dismissal.
Here’s how the 6th Circuit analyzed the case: As you may be aware, Title I of the ADA prohibits discrimination against qualified individuals with disabilities with respect to all terms, privileges, benefits and conditions of employment. So first, Ms. Popeck had to show that in fact she was a “qualified individual”. To be “qualified”, however, one must be able to perform one’s essential job functions with or without a reasonable accommodation. You can probably see where this is going, right? Reasonable accommodations can include schedule changes, some modifications in the job or an employer’s policies, but would NOT include removal of an essential job function. The 6th Circuit zeroed in on regular, in-person attendance, i.e. is it or is it not an essential job function, and concluded that in this particular case it was. Since Ms. Popeck could not fulfill the reasonable accommodation of regular, in-person attendance, she was not a qualified individual with a disability, and therefore was not protected under Title I of the ADA.
Why was attendance an essential function in this case? The court noted that Ms. Popeck’s job as a claims auditor required working on premises from secured computers. In fact Rawlings specifically prohibited remote work by claims auditors, due to the “‘large volume of confidential and HIPAA protected personal information’” in claims review. Ms. Popeck argued that regular in-person attendance was not an essential job, relying on the fact that other employees, such as IT workers could work remotely. Since IT staff were not subject to the same requirements as claims auditors, the court had no trouble rejecting that argument. (I feel I should also point out that Rawlings had in fact already provided Ms. Popeck multiple reasonable accommodations, and, assuming it had proper documentation, probably could have made a good argument that further accommodations posed an undue hardship. Additionally, the court noted that while Ms. Popeck proposed, as a reasonable accommodation that she be able to continue arriving later and leaving earlier to accommodate her IBS such an accommodation would not even begin to address the problem, as her actual absences far exceeded late arrivals and early dismissals.)
So, does this case mean that employers do not have to grant non-FMLA eligible employees time off for medical conditions? NO! Wait. Didn’t the court say that regular, in-person attendance is an essential job function? No. The court found that regular, in-person attendance was an essential function of Ms. Popeck’s job. In other words, whether attendance, or any other requirement is an essential job function is determined by…. wait for it…. specific circumstances. That means an employer will have to do an individualized assessment (and, of course, document the assessment, the conclusions and the reasoning) in order to determine whether attendance — or anything else, really– is an essential job function. The court implied that if Ms. Popeck had worked in IT, that it might have ruled very differently.
To determine whether regular, in-person attendance is an essential job function, an employer needs, at a minimum, to look at job descriptions, other circumstances under which the job is performed and its (i.e. the employer’s) past practices in similar situations, if any. Input from other employees currently performing the same job, in some situations can also be helpful.
OK, why don’t we call this one a wrap? Stay warm, stay dry, and let’s meet back here next week for another scintillating post on another issue of concern to employers? See you then!
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