As an employer, you might think you’ve heard all the excuses why an employee is late for work. But what if they’re working from home? Seriously, how is that even possible? Well, that’s exactly what happened in Taylor-Novotny v. Health Alliance Medical Plans, Inc.
In this case, an employee had tardiness and attendance issues from the beginning of her employment in late 2005. She was verbally counseled repeatedly, and placed on a performance plan. Her start time was pushed back twice to make it easier to arrive on time. These issues were noted in every performance review. But the issues continued.
In May 2008, the employee was diagnosed with multiple sclerosis, and she began working at home several days a week at the recommendation of her doctor. Under her “Work From Home” agreement, she agreed to comply with all Company policies, and to let the Company know if she were ill, had a doctor’s appointment, or had some other interference with her work.
The employee’s tardiness issues continued, and were raised in her performance review and subject to counseling. In March 2010, her managers and the VP of Human Resources met with her to discuss her continuing tardiness issues. She was reminded that she must contact her manager “every time she will be late, her expected arrival time, and the reason for the lateness, regardless of whether she is scheduled in the office or at home.” (Emphasis added).
Despite this instruction, the employee was tardy twice in the next two weeks. Both times she failed to notify her manager. As a result, she received a written warning. Her tardiness was also noted in her next performance review. Then in May 2010, the employee received a final written warning because she was tardy on eight occasions in a three week period, and failed to notify her manager every time. The employee was counseled again in June for two other instances of unreported tardiness.
Finally after two more incidents in which she failed to notify her manager of tardiness (while working at home, by the way), the employee was terminated for her continued tardiness and failure to accurately report her work time (because what she recorded was different than what her computer log on indicated), in addition to poor work performance and falsification of work documents (she falsified records of business calls she was supposed to have made, as well as reporting logs on her work efforts). She then sued the Company, claiming violations of the Americans with Disabilities Act, among other things. The district court threw out her lawsuit on summary judgment, and she appealed to the U.S. Court of Appeals for the 7th Circuit.
As the 7th Circuit noted, the ADA protects “qualified” individuals with a disability, meaning that they can perform the essential functions of the job with or without reasonable accommodation. The employee argued that regular attendance and punctuality were not essential for her position, as evidenced by the fact that she was permitted to work from home. The 7th Circuit disagreed with her, observing that “[a]n employer is generally permitted to treat regular attendance as an essential job requirement and need not accommodate erratic or unreliable attendance. A plaintiff whose disability prevents her from coming to work regularly cannot perform the essential functions of her job, and thus cannot be a qualified individual for ADA purposes.” In this case, allowing the employee to work from home did not mean that punctuality and attendance are not essential functions; she still needed to comply with those requirements.
And really, when you’re working at home, it should not be hard to roll out of bed and start work on time. Even in your PJs!