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Understandably, many employers often maintain full-time attendance is an essential function of the job.  In some ways this thinking makes sense – if employees are not present at work how can they do their job?  But, with improvements in technology and the opportunity to work remotely or on a reduced schedule, savvy employers know this topic is no longer so cut and dry. 

A recent case out of the Sixth Circuit Court of Appeals, the federal appellate court which covers Tennessee, Ohio, Michigan and Kentucky, makes it crystal clear for employers – presuming full time attendance is an essential function of the job in today’s day and age is a risky move. 

In Hostettler v. College of Wooster, the Sixth Circuit held full-time presence at work is not an essential function of a job simply because an employer says that it is. 

Hostettler worked in the Human Resources Department at the College of Wooster.  She had a baby and took leave from work.  When it was time for her to return to work, she notified the school she was suffering severe post-partum depression and separation anxiety and would need additional time off.  The school allowed her a few additional weeks of leave.  When she returned to work, she returned part-time per her doctor’s orders.  This is when things went south.  Although there was no evidence Hostettler failed to complete any requested tasks on the reduced schedule, the school ultimately terminated her employment when she continued to need to work a reduced schedule for additional months.

Among other claims, Hostettler brought a claim for disability discrimination under the Americans with Disabilities Act (ADA).  The district court granted summary judgment to the school holding full time work was an essential function of her job and she could not satisfy that essential function with or without a reasonable accommodation.  Therefore, the court held Hostettler was not a qualified individual under the ADA.

The Sixth Circuit reversed.  The Court of Appeals held that while regular attendance is an essential function of any job it is not unconditionally so – rather, a case-by-case analysis must be performed.  In this case, Hostettler presented evidence she performed all of her work on her reduced schedule.  The school did not put forth any hard evidence to the contrary.  Therefore, the court held full time attendance for her position was not an essential function of her job. 

Oftentimes, employers attempt to argue an employee’s absence puts a strain on the department and is an undue hardship.  The court addressed this issue too.  It firmly stated “Wooster may have preferred that Hostettler be in the office 40 hours a week. And it may have been more efficient and easier on the department if she were.  But those are not the concerns of the ADA.  Congress decided that the benefits of gainful employment for individuals with disabilities – dignity, financial independence, and self-efficiency, among others – outweigh simple calculations of ease or efficiency.”

While this case is only binding in the states within the Sixth Circuit, it is a sign of the times – coming in to the office is just not as important as it once was.  If you believe coming into work is an essential function of the job, make your case now.  Explain what must be done in the office and why remote work won’t suffice.  As Wooster College discovered, vague claims of inefficiency or incomplete assignments won’t win any more. 

Brody and Associates regularly provides counsel on the ADA, as well as other civil rights issues and employment laws in general.  If we can be of assistance in this area, please contact us at info@brodyandassociates.com or 203.454.0560.