OK to label attendance an essential function

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in Employment Law,FMLA Guidelines,Human Resources

It seems logical—employees who can’t come to work won’t be able to perform the essential functions of their jobs. It may be possible to accommodate some disabled employees by letting them work from home, but that’s not true of most jobs.

Recent case: Joyce Miller worked as a surgical technologist at a major medical center. She contracted hepatitis C and took several lengthy leaves of absence for treatment. The last treatment was successful and she returned to work full time.

Then her attendance began to deteriorate. She had 13 unscheduled absences in one year and got an oral warning. After another 10 absences, she got a written warning. Twelve absences later, she received a three-day suspension. Finally, after another suspension, she missed 13 more days and was terminated.

She sued, alleging that she had missed work due to her hepatitis. She had never mentioned the condition when discussing her absences.

The medical center argued that Miller’s job required regular attendance and the ability to come to work during medical emergencies. It said those were essential functions and could not be accommodated.

The 3rd Circuit Court of Appeals agreed. It wrote that “given the nature of Miller’s job, assisting during surgery performed in the hospital, we find it evidence that attendance is an essential element of this position.”  It also noted that Miller couldn’t come up with any sort of reasonable accommodation that would allow her to perform the essential functions of her job without being present. (Miller v. University of Pittsburgh Medical Center, No. 08-3359, 3rd Cir., 2009)

Caution: Remember that disabled individuals may also be entitled to time off under the FMLA for serious health conditions. When tallying absences for disciplinary purposes, make sure you don’t count absences covered by the FMLA.

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