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The Labor & Employment Report

Regular Attendance Can Be An Essential Job Function – Really!

Posted in Employee Leave (FMLA and ADA), Litigation, Reasonable Accommodation

One of the most challenging issues that my clients deal with is managing employee leave rights under the Americans with Disabilities Act and the Family and Medical Leave Act.  Getting employees to come to work on a regular basis can be frustrating – hair-pulling, teeth-gnashing frustrating.  So the recent case of Mecca v. Florida Health Services Center, Inc., in which the court held that regular attendance at work is an essential function of a specialty nurse’s job, is grounds for rejoicing by employers.

This case involved a peripherally inserted central catheter (PICC) nurse, a position that requires specialized training and is subject to specific treatment protocols.  The nurse requested and received accommodation for panic attacks in the form of both intermittent and block FMLA leave.  After being threatened with termination for failing to respond to requests to assess patients and insert a PICC line, the nurse resigned.  He subsequently sued, claiming among other things that the employer failed to provide reasonable accommodation under the ADA.

In order to be protected under the ADA, an employee must be able to perform the essential functions of his job with or without reasonable accommodation.  The ADA regulations identify three bases for finding that a job function is essential:

  • the reason the position exists is to perform the function
  • there are a limited number of employees available among whom the performance of the job function can be distributed
  • the function is highly specialized so that the incumbent in the position was hired for his or her expertise or ability to perform the particular function

In this case, the court found that the nurse’s position was so specialized, he could not be easily replaced at a moment’s notice, which would jeopardize patient care.  Therefore, regular and punctual attendance was an essential function of the PICC nurse position.  The only accommodation the nurse sought was leave.  But taking leave obviously will not help the nurse meet the essential job function of regular attendance.  Because the nurse could not perform an essential function of his position, he was not entitled to the protection of the ADA.

Sadly, even though it makes no sense, regular attendance is not considered an essential job function for many jobs.  But it may be for certain specialized positions, and employers should be aware of this possibility as they struggle to manage employee leave demands.