Employees discharged because of poor attendance sometimes claim that the employer violated the Americans with Disabilities Act (ADA) when the employee’s absences resulted from a disability. In essence, the employee asserts that the employer should have accommodated the employee’s absenteeism, as the employee was otherwise able to perform the job. The U.S. Court of Appeals for the Ninth Circuit recently held, in Samper v. Providence St. Vincent Med. Ctr ., 675 F.3d 1233, 2012 U.S. App. LEXIS 7278 (9th Cir. 2012), in precisely that factual context that even if an employee’s absenteeism is the result of a disability, an employer may not be held liable under the ADA when attendance is an “essential function of the job.”
To preserve the common-sense notion that reporting to work is an essential function of a job, employers should craft job descriptions and attendance policies that highlight the business justification for requiring regular attendance. Courts have demonstrated a willingness to look at employers’ written job descriptions and the realities of particular workplaces to evaluate whether attendance is indeed an essential job function.
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