REGULAR ATTENDANCE AN ESSENTIAL FUNCTION?
BY THOMAS D. SCHNEID
Fire departments facing personnel issues and decisions involving qualified individuals with disabilities should evaluate every applicable law and issue before making a final judgment. In the case of Carr v. Reno, [1994 U.S. App. LEXIS 11606 (D.C. Cir. 1994)], the U.S. Court of Appeals for the District of Columbia affirmed a District Court opinion under the Rehabilitation Act (RA) stating that the maintenance of a regular fixed work schedule could be considered an essential function of the job. In this case, Carr was hired in 1980 by the Department of Justice through a special program for disabled individuals. The job involved coding papers of recent arrests at the U.S. Attorney`s Office. The coded papers were to be picked up daily at 4:00 p.m. for input into a computerized database and the U.S. Attorney`s Office would be required to provide considerable resources if this database got behind.
Carr`s disability involved periodic dizziness and nausea, which caused her to miss 477 hours from work (357 of which were not paid) in her first seven months of employment. During her next four years of employment, Carr averaged 450 hours per year of absence from work. Many absences occurred without notice and often the period of absence would last more than a month. As a result of her absences, the U.S. Attorney`s Office terminated Carr`s employment. Carr brought a suit under the RA and the District Court granted a summary judgment in favor of the U.S. Attorney`s Office. Carr appealed this decision to the D.C. Circuit.
The essence of this appeal involved whether Carr was a qualified individual with a handicap who could perform the essential functions of the position in question with or without reasonable accommodation and without endangering the health and safety of herself or others. The primary argument used for Carr was that she was entitled to the accommodation of a highly flexible work schedule.
The court, in rejecting this argument, stated, “The U.S. Attorney`s Office has demonstrated that its 4:00 p.m. deadline renders a flexible schedule an undue hardship.” Additionally, the court stated, “With or without reasonable accommodation, then, (Carr) could not perform the essential functions of coming to work regularly.“ [Also see Matzo v. Postmaster General, 685 F. Supp. 260 (D.C. Cir. 1987) aff`d without opinion, 861 F.2d 1290 (D.C. Cir. 1988).]
The Court of Appeals addressed the methods in which the U.S. Attorney`s Office could have accommodated Carr. The court noted that the D.C. Circuit had previously approved allowing employees to work at home as a reasonable accommodation. [See Langon v. Department of Health and Human Services, 959 F.2d 1053 (D.C. Cir. 1992).] However, the court found that this option was not a viable alternative because of the 4:00 p.m. deadline in this case. The court also noted that reassignment to another job could be another form of reasonable accommodation. The court stated, “We agree with the proposition that an essential function of any government job is an ability to appear for work (whether in the workplace or, in the unusual case, at home) and to complete assigned tasks within a reasonable period of time…. If it is unreasonable to ask the Office to continue to put up with Ms. Carr`s poor attendance, it is equally unreasonable to require the Office to refer an unqualified employee to another government agency for employment.”
JOB REQUIRES ON-SITE PERFORMANCE
The second case involving regular attendance was Jackson v. Veterans Administration, 22 F.3d 277 (11th Cir. 1994). This case involved a temporary employee employed by the Veterans Administration (VA). In this case, Jackson was hired as a temporary employee and was absent six days within the first 212 months of employment. The VA terminated Jackson because of excess absenteeism. It was undisputed in this case that Jackson was disabled because of arthritis. However, the issue before the court was whether Jackson was “otherwise qualified.” The Eleventh Circuit, in holding in favor of the VA, stated, “Unlike other jobs that can be performed off-site or deferred until a later date, the tasks of a housekeeping aid by their very nature must be performed daily at a specific location. Because Jackson was absent numerous times within the first few months of his probationary employment on a sporadic, unpredictable basis, he could not fulfill the essential functions of his employment, that of being present on the job, and was not otherwise qualified.”
Jackson`s arguments included accommodation by flexible schedule and modification to support allowing an employee absences in excess of allotted leave time. The court rejected both arguments in this case.
As can be seen by the above cases, the law in the area of regular attendance as an essential function is beginning to solidify. Fire departments may want to evaluate their attendance and personnel policies to ensure compliance with the Americans with Disabilities Act (ADA) and the RA to conform with these decisions. Firefighters with difficulties in attendance or other related job functions due to a disability should discuss these matters with the personnel office before permitting such excessive absenteeism to develop to an extreme where disciplinary action may be appropriate. Remember, in the area of excess absenteeism, both the firefighter and the fire department can be hurt. Maintaining open lines of communication can resolve many problems prior to the initiation of disciplinary action. n
THOMAS D. SCHNEID is a professor and attorney with the Department of Loss Prevention of Eastern Kentucky University`s Fire and Safety Engineering Technology Program. He has a bachelor`s degree in education, a master`s degree and a cerificate of advanced study in safety, a law degree, an LLM (master of laws) degree in labor and employment law, and a Ph.D in environmental engineering. He has 15 years of experience as a consultant and attorney for general industry.
