This week, the federal Tenth Circuit Court of Appeals affirmed dismissal of an ex-employee’s lawsuit claiming discrimination under the Americans with Disabilities Act (ADA) because her employer declined her request to “not work for half the day when she was feeling overwhelmed by her anxiety on a unilateral as-needed basis and with no advance notice to her employer.”

In Lamm v Devaughn James, LLC, Case No. 19-3167, (February 7, 2021), the appeals court ruled that the plaintiff could not fulfil the essential functions of “regular and predictable attendance,” and that the plaintiff’s requested accommodation was unreasonable as a matter of law.

The plaintiff, who suffered from Generalized Anxiety Disorder and panic attacks, requested the ability to work half days when she unexpectedly experienced “intense anxiety.” The employer denied the requested accommodation and warned the employee about sporadic attendance. The employee then missed over 130 hours of scheduled work during a 6-month period. The employer again reminded the employee that she was expected to work 40 hours per week and told her that she was falling behind on her assignments. The employee’s sporadic attendance continued and the employer terminated her employment for excessive absenteeism.

The appeals court pointed out that the essential functions of the plaintiff’s job—including regular and predicable attendance and in-office meetings—were set forth in her written job description, which the appeals court declined to “second guess.” Because the employee was “absent from her duties excessively and often without warning,” she could not fulfill the essential functions of “regular and predictable attendance” and completing administrative and client-facing tasks.

Therefore, the employee's requested accommodation—the indefinite flexibility to work half-days when she was experiencing anxiety—was unreasonable as a matter of law since it would not allow her to fulfill the essential functions of her job.

What does this mean for employers?

  • “Regular attendance” and “schedule adherence” should be listed as essential functions in written job descriptions. When reviewing whether an ADA accommodation request is reasonable or unreasonable, courts look to written job descriptions to determine the essential functions of a job position. Employers are not required to remove essential job functions in order to accommodate an employee’s disability.
  • If an employee is missing work sporadically due to a disability not covered by the Family and Medical Leave Act (FMLA), the employee should be warned that continued sporadic attendance cannot be accommodated because it causes an undue hardship on the company. Different rules apply to FMLA leave.
  • If the absenteeism continues after the warning, the employee should be provided a final warning stating that if sporadic attendance continues the company will have no choice but to terminate employment due to the undue hardship caused by excessive absenteeism.
  • If the excessive attendance issues continue after the final warning, the employer will be able to move forward with termination of employment, as long as termination is consistent with the way non-disabled employees have been treated when sporadically missing work. Consistency is always key.

Need help with written job descriptions or understanding your ADA and FMLA obligations? Don’t worry, we’re here to help!

Back to News & Resources