Although regular attendance may be an essential function, leave may still be required

The United States Court of Appeals for the Sixth Circuit rejected an employer’s argument that the employee was unable to perform any of her essential job functions, including attendance, date of his termination, and therefore was not entitled to Americans with Disabilities Act protections. As the Sixth Circuit noted, “To accept [the employer]According to the supposed rule, an employee requesting sick leave could still be terminated if she was unable to work at the time of her request. But that can’t be the case because…medical leave can be a reasonable accommodation under the ADA.

In Blanchett c. Charter Communications, LLC, the employee suffered from postpartum depression. After exhausting her FMLA leave, she requested an additional 60 days leave, but was instead terminated because she was unable to perform her duties, including attendance. As the Sixth Circuit noted, however, the employee was not asking for an accommodation that would permanently remove attendance as an essential job function (such as telecommuting or part-time work). Rather, her leave request was a temporary accommodation that would hopefully allow her to meet the attendance requirement once the leave was over. Thus, by refusing the leave request and dismissing the employee, the employer failed to provide reasonable accommodation.

So while employers can certainly make regular and predictable attendance a core function of some jobs, as we recently mentioned in our February 2022 Electronic Updatethey must recognize that a temporary leave may constitute a reasonable accommodation.

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