The Americans with Disabilities Act is broken. As the sportscasters intone, let's go to the stats. Based on the last census, one in every 25 Americans are ADA disabled. Yet only 41 percent of those with a disability, in the age 21 to 64 cohort, are employed.

According to Matthew Brault, U.S. Census Bureau, Americans with Disabilities Act (2012) these numbers reflect the harsh reality that “people with disabilities, as a group, occupy an inferior status in our society, and are severely disadvantaged … economically.” What went wrong? Promise was bright when the law was enacted in 1990.

Yes, the U.S. Supreme Court gave a strained and narrow interpretation of what constituted a “disability” that resulted in numerous lawsuits getting tossed summarily for failing to satisfy this initial threshold. But these decisions were overturned by Congress in 2008 amendments to the ADA. And the amendments worked as professor Stephen Befort demonstrated in his landmark study on the ADA. Pre-amendments trial courts granted summary judgment 74.4 percent of the time when an employer argued that the plaintiff was not ADA disabled. Post-amendments that number plummeted to 45.5 percent, a 28.5 percent decrease. And many employers, as I can state from experience, elected not to waste attorney fees spent in arguing and the court's time in deciding, whether a plaintiff was disabled.

But as a gene mutates so does employer resistance to ADA lawsuits. Professor Michelle A. Travis argued that point in her perceptive and intellectually accessible article, “Disqualifying Universality Under the Americans With Disabilities Act Amendments Act,” 2015 Mich. St. L. Review 1689. The new normal is now arguments based on these lines: Even if an employee is ADA disabled, the employee must still be otherwise qualified for the job, which means the employee must be able to perform the essential functions of the job with or without a reasonable accommodation.

The key then is what is an essential function and who gets to decide. As Travis writes, “Perhaps the most concerning trend within the broader disqualification strategy is judges' willingness to apply the essential functions concept not just to actual job functions, but also to employer decisions about when and where those functions are accomplished. … not just [the] way work typically gets done, but as a defining feature of work itself. These embedded workplace structures include … the 'full-time, face–time norm,' which is the assumption that work must be done at a central worksite, in full-time positions, with unlimited scheduling flexibility, unlimited hour availability and an uninterrupted work-life capacity.” This is what I call the Calvinist streak in employment law. And this defense is taking hold. Befort pointed out that the qualification defense, post-amendments, are a winning argument 69.7 percent of the time, up 21.6 percent from pre-amendment win rates.

Let's focus on in-person attendance as an essential function of the job. Here is the simplistic version. I, the employer, decide that in-person attendance is an essential function of the job. For whatever reason, the employee cannot come into work. Because a spectral image won't cut in-person attendance, the employee is unable to fulfill an essential function and thus is not qualified for the position. Presto, I win if sued. But the decision on what is an essential function is subject to scrutiny. Here are three very recent cases: Hostettler v. College of Wooster (6th Cir. July 17, 2018) (summary judgment for employer reversed; postpartum causes inability to return to work full time); Mosby-Meachem v. Memphis Light, Gas & Water Division (6th Cir. 2018) (summary judgment for employer reversed; pregnancy-related complications causes inability to return to work full time); Credeur v. State of Louisiana, (5th Cir. 2017) (summary judgment for employer affirmed; kidney transplant causes inability to return to work full time). Let's pull together their holdings.

First, the ADA and the CFR's indicate that a court must give the greatest weight to an employer's judgment in determining an essential job function. It is, in fact, the only evidence the statute requires a court to consider, absent a written job description.

Second, controverting and competing evidence can be considered in opposition to a determination that a task is an essential function. So, the fact that a job description is 20 years old and has not been updated since can be considered in determining whether there is a question of material fact on whether in-person attendance is an essential function. (Mosby-Meachem) So too whether the employee has really been required to perform certain duties listed as essential functions, such as taking depositions and attending trials or is merely aspirational. (Mosby-Meachem) Evidence that an employee has been able to complete “core” tasks while working part time and the employer points only to a generalized fear that a ball will get dropped if the employee does not return to full-time work in-person work. (Hostettler)

Third, an employee's mere subjective belief that the employee can work only part time at the employer's office or full-time from home will not create a material issue of fact on whether in-person attendance is an essential function. (Credeur)

Fourth, how long a period of time is the employee seeking not to be physically at work? Ten weeks as in Mosby-Meachem or indefinite as in Credeur. The first could be considered reasonable and up to a jury, the second unreasonable as a matter of law.

In short, full-time presence at work, standing alone, is not an essential function of the job. It is no more than a barroom generality whose invocation does not merit summary judgment. Rather, an employer must be tasked—for the ADA to continue to have meaning and force—with pointing out the time–and-presence requirements to some other job requirement.

Finally, as it takes a village so does it take all of us (employers, plaintiff lawyers and courts) to ensure that the ADA is not gutted. Employers should truly list essential functions that are essential and not seek to stuff every possible job task into the essential category; plaintiff lawyers need to induce a court to make a fact-specific inquiry into whether a task or attendance is essential by marshaling facts for a court to process; and courts must be reminded that the ADA requires case-by-case assessments. And we all should drop our Calvinist bent, so long bred into us, that the only work worth doing or that counts is in our office or cubicle, day in and day out.