Sid Steinberg of Post & Schell

We have all heard the old adage "time is money," but what if an employee's disability affects his ability to show up for work on time? This issue was recently addressed in Albright v. Trustees of the University of Pennsylvania, No 19-00149, 2019 U.S. Dist. LEXIS 180654 (E.D. Pa. Oct. 18, 2019), where the court clarified that, in the context of the Americans with Disabilities Act (ADA), whether "predictable and punctual attendance" constitutes an essential function of a job largely depends on the specific nature of the job itself.

The Issue of Chronic Tardiness

Keith Albright began working for Penn Health as a clinical audiologist in 2013. Albright worked scheduled shifts, meeting with patients from the hours of 8 a.m. to 4:30 p.m. five days a week. At the time, he worked in both the University City audiology department in Philadelphia and the audiology department in Radnor, Pennsylvania. His job performance was well-regarded, especially as it pertained to patient-care satisfaction.

Beginning in 2016, Albright started showing up late to work. Not just once or twice—he had 23 late arrivals in 2016 alone and 60 overall in a two-year period. The audiology department had a policy requiring employees to text the department supervisor, Sherrie Davis, by 7 a.m. if they were running late or needed to be absent unexpectedly. Most times, however, Albright did not text Davis until after he was already scheduled to arrive, well after 7 a.m.

Reasonable Accommodation

When Albright did notify Davis that he would be late to work, he offered a plethora of reasons for his tardiness. These included having a yoga class in the morning, traffic delays, stalled buses, feeling ill, getting lost in the hospital and "grabbing coffee." In 2016, Davis first met with Albright in an attempt to help him resolve his issues and offer accommodations for his tardiness that was later attributed to clinical depression and anxiety disorders that caused him to oversleep. Albright asked to start his work day at 8:30 a.m., rather than 8, and work only in the University City office. Davis obliged. Albright also met with the university's employee assistance plan counselors. Despite the adjustment to his schedule and his counseling sessions, Albright continued his pattern of tardiness without providing the appropriate notice.

As such, the university placed Albright on a formal performance improvement plan in March 2018. Albright received two warnings and it was suggested that he consider requesting FMLA leave. Albright was ultimately approved for intermittent FMLA leave that allowed him two, three-hour absences from work per week. However, and most importantly, Albright was still expected to follow the 7 a.m. call-out policy. On Nov. 29, 2017, Albright arrived late to work without notifying Davis and without attempting to invoke his FMLA leave. This was "the last straw" and Albright was terminated on Dec. 6, 2017. Albright subsequently sued the university alleging it discriminated and retaliated against him in violation of the Americans with Disabilities Act, Pennsylvania Human Relations Act and Philadelphia Fair Practices Ordinance. The university moved for summary judgment.

Albright's ADA Claims Fail

After finding that Albright's depression and anxiety could substantially limit the major life activities of sleeping and brain function, the court was left to determine whether Albright could perform the essential functions of his position with or without reasonable accommodation. The court found that "whether predictable and punctual attendance constitutes an essential function of a position largely depends on the nature of the job itself." Particularly in cases where an employee is working in the health care industry and dealing with patients directly who have scheduled appointments, regular and predictable attendance is an essential function of the job. The employer's judgment of essential job functions, written job descriptions or position descriptions, the amount of time performing the function, the consequences of not performing the function, the terms of a collective bargaining agreement, the work experience of past employees on the job, and the current work experience of others on the job are all key aspects that the court takes into consideration. The court observed, however, "punctuality for the sake of setting a good example does not rise to the level of an essential function."

Moreover, the court found that there was no reasonable accommodation that would allow Albright to perform the essential functions of his job because his inability to be on time "was excessive, unpredictable and unforeseeable." Moving his start time to a later point in the day was not practical because Albright did not come into work with any sort of regular timing whatsoever. There was also no basis for the argument that the university's termination of Albright was pretextual because Albright's tardiness was the reason for each and every written warning, and his eventual termination. Albright's failure to accommodate claim similarly failed because there was no evidence that Albright requested additional accommodations beyond those that he was provided. Any arguments that Albright's schedule could be shifted to begin later in the afternoon or evening were dismissed because this would be the equivalent of "asking the university to create a nonexistent shift schedule for him, which the ADA does not require an employer to do."

FMLA Claim Also Fails

Albright argued that the university's requirement that he report his attendance by 7 a.m. interfered with his FMLA rights. The court noted that the act requires an employee to give "such notice as is practicable" and the regulations observe that it "generally should be practicable for the employee to provide notice of leave that is unforeseeable within the time prescribed by the employer." However, there may be "unusual circumstances" where the condition for which FMLA is needed will prevent compliance with the employer's policies.

In this case, however, Albright did not invoke FMLA for his tardiness on Nov. 29, resulting in a finding that "FMLA benefits were not actually withheld."

Employees Need to Come to Work

While it is clear that attendance will almost always be an essential function of a job, whether attending "on time" is an essential function will be dictated by the particular job and the particular circumstances. Even where an employee's absences or tardiness are accommodations or are covered by the FMLA, and employer will generally be able to hold the employee to the same, nondiscriminatory call-off policy as employees not subject to these statutes.

Sid Steinberg is a principal and chair of Post & Schell's employment and employee relations and labor practice groups. Steinberg's practice involves virtually all aspects of employee ­relations, ­including ­litigation experience defending employers against employment discrimination in federal and state courts. He also represents ­employers before federal, state and local ­administrative agencies, and regularly advises employers in matters including employee discipline, labor relations, and the creation or revision of ­employee handbooks. He can be reached at [email protected].