Is Regular Attendance Always An Essential Job Function?

Most of you just read the headline and probably answered “of course”.  But a recent decision by the Sixth Circuit Court of Appeals ( the federal court of appeals that has jurisdiction over Tennessee federal courts), shows that the answer is not always that certain.

In Hostettler v. College of Wooster the plaintiff, a full time HR Generalist, was seeking a part-time work schedule following the birth of her child.  When the plaintiff was unable to return to work on a full-time basis because she was recovering from post-partum depression and separation anxiety, the college fired her.  The plaintiff sued under the Americans with Disabilities Act, Title VII of the Civil Rights Act of 1964, the Family and Medical Leave Act and Ohio statutory law.  The district court granted summary judgment to the college on all of Plaintiff’s claims.  The district court decided that Hostettler could not make out a prima facie case under the ADA because she could not meet an essential function of the position, full time work, and was thus not qualified for the job.

On appeal the Sixth Circuit reversed the decision because it found that genuine factual disputes existed on material issues in the case.  Several facts were key to the Sixth Circuit’s decision.  One of Hostettler’s colleagues stated in a sworn declaration that she believed that Ms. Hostettler could do much of her work from home and that working from home was a common practice in the department.  The colleague also stated that Ms. Hostettler was replying to work emails in the evenings when she was working a modified schedule prior to her termination.  The colleague further stated that while Ms. Hostettler was on a modified schedule she was not aware of any assignments that Ms. Hostettler failed to complete.

Another key fact was that on Ms. Hostettler’s performance evaluation that was completed shortly before she was fired she received no negative feedback.  To the contrary, the college stated that “Heidi is a great colleague and welcome addition to the HR team!”.  Given these facts, and others, the Sixth Circuit determined that summary judgment was not appropriate.

Importantly, the Sixth Circuit did not hold that regular attendance is not an essential job function.  In fact, in the 2015 decision of EEOC v. Ford Motor Company the Sixth Circuit reaffirmed that regular attendance often is an essential function of the job.  But in Ms. Hostettler’s case there were factual disputes that precluded dismissing the case without a trial.

There are a few significant employer take always from this decision.  The college focused heavily on the fact that the job description stated that regular attendance is an essential job function.  But the facts of the case were inconsistent with that statement.  So make sure your job descriptions are accurate.  Additionally, just because your job description says one thing, if the facts pertaining to that employee are inconsistent with the job description, don’t let the job description drive your decision.

Finally, the plaintiff was fired after receiving a glowing performance evaluation.  Anytime you look to fire an employee for performance based reasons make sure you review their entire personnel file, including the most recent performance evaluation, before going forward with that decision.  If the performance evaluation is favorable, or other recent documents indicate acceptable or good job performance, reconsider whether termination is appropriate.  And as always, when in doubt, call your lawyer.

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