Absence Makes the Heart Grow Fonder…of Your Absence
The Americans with Disabilities Act (ADA) compels employers to be accommodating and flexible, but the harsh reality is that there are some jobs that a person with certain disabilities simply cannot do. When an employee suffering from a disability can no longer perform the essential functions of her job with or without a reasonable accommodation, the ADA allows the employer to terminate her. Although this rule might be more easily applied when dealing with a physical disability that prevents an employee from completing critical tasks, it also holds true for an employee with a mental or emotional disability, particularly one that prevents her from working at all. The Sixth Circuit made this crystal clear in Williams v. AT&T Mobility Services LLC.
The Williams case involved an AT&T customer service representative (CSR) who suffered from depression and anxiety attacks that caused her to frequently miss work. Because of her excessive absenteeism, AT&T terminated Williams for job abandonment and violating the attendance policy. Williams sued AT&T under the ADA for failing to provide a reasonable accommodation, failing to engage in the interactive process, and terminating her based on her disability. The U.S. District Court for the Western District of Tennessee granted summary judgment to AT&T as to all of Williams’s claims. Williams appealed, arguing that she could have performed her job despite her depression and anxiety attacks if AT&T had given her leave from work for treatment, flexible scheduling, and additional breaks during her shifts. The Sixth Circuit disagreed.
Regular Attendance Was an Essential Job Function.
Citing EEOC v. Ford Motor Co., the Sixth Circuit first explained that regular attendance qualified as an essential job function, so employees with excessive absences were not qualified individuals under the ADA because they failed to perform that essential function (i.e., regularly attend their jobs). Considering AT&T’s strict Attendance Guidelines and declarations from two AT&T managers regarding the CSR position, the Sixth Circuit held that regular attendance was an essential function of the CSR position. The court noted Williams’s poor attendance record, including being absent from work for entire months in two different years, taking a six-month leave and nearly three-month leave, and not getting her unscheduled absences approved for short-term disability leave. Given this record, the Sixth Circuit held that Williams could not perform the essential function of regularly attending her job and was not qualified to be a CSR without a reasonable accommodation.
Williams Did Not Request Reasonable Accommodations.
Because Williams failed to show how her proposed accommodations would have enabled her to perform the essential functions of a CSR, the Sixth Circuit also found that AT&T did not fail to accommodate her. Williams admitted that her anxiety attacks were unpredictable, she could not perform her job duties during her attacks, she could not function in a call center environment, and she could not focus due to her mental illness. Importantly, neither Williams nor her health care providers explained how flexible scheduling and additional breaks would have mitigated these issues and enabled Williams to do her job. Furthermore, the Sixth Circuit held that requiring AT&T to grant Williams additional leave was an unreasonable accommodation because Williams had a history of taking leaves, her condition never improved during those leaves, and she repeatedly failed to return to work when her health care providers estimated that she would be able to return.
After reiterating that an employer’s failure to engage in the interactive process is only actionable if the employee can demonstrate that she was qualified for the position, the Sixth Circuit stated that it was unnecessary to consider whether AT&T failed to engage in the interactive process because Williams was unqualified for her position with or without a reasonable accommodation. The court also agreed with the district court that Williams failed to establish a prima facie case of disability discrimination or retaliation and affirmed the district court’s summary judgment ruling in favor of AT&T.
So, what is the Sixth Circuit telling us about how to deal with a mental disability that prevents an employee from coming to work? First, clearly articulate the essential functions of an employee’s job, preferably in writing (e.g., job description, employee handbook), and be sure to mention attendance is essential. Second, assess whether the employee is performing the essential functions of her job (including coming to work), being sure to document and promptly inform the employee about deficiencies. Third, discuss whether there are any reasonable accommodations available that would allow the employee to do her job. Ask for recommendations from the employee’s health care providers during this interactive process. If you and the employee (and the employee’s doctor) cannot come up with a reasonable accommodation that does not eliminate an essential job function of the position (i.e., coming to work), and you do not have a vacant position in which you can reasonably accommodate her, you may have to terminate the employee. Although handling this type of issue may take some time, in this case the Sixth Circuit declared that AT&T did all that the ADA required. Employers should follow its example.
If you or your staff would like training on this issue, or just require further information, the attorneys at Leasor Crass stand ready to assist.