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8th Circuit: Unexcused Absences Do Not Constitute ADA Accommodation

By Maria Greco Danaher   12/28/2007

The 8th U.S. Circuit Court of Appeals held that an employee’s request for unexcused absences on short notice was not a request for a reasonable accommodation under the Americans with Disabilities Act (ADA) and that the worker was not a qualified individual under the law.

As a patient care technician at two kidney dialysis facilities owned by Fresenius Medical Care North America, Elizabeth Rask was disciplined for attendance problems, and ultimately fired for that reason. Based on her long history of depression, Rask filed an action against Fresenius claiming, in part, violation of the ADA.

The district court’s dismissal of that claim was upheld by the 8th Circuit on appeal.

To show that she was qualified for protection under the ADA, Rask had to show that she was able to perform the essential functions of her job. The ADA prohibits employment discrimination against qualified individuals with disabilities. Under that act, a “qualified” individual is one who, either with or without reasonable accommodation, can perform the essential functions of the employment position desired or held.

Because regular and reliable attendance typically is considered to be a necessary element of most jobs, Rask would not be qualified unless she could show that a reasonable accommodation would allow her to perform the essential functions of her position.

The federal appeals court found that Rask’s statement to her supervisors that she was having problems with her medication and that she “might miss a day here and there because of it” could not form the basis of a request for a reasonable accommodation. The point of such a request is to allow the employer to understand the limitations of the individual employee and to allow the company to determine how best to assist the individual in engaging in the essential functions of her job. Rask’s request did neither.

At the time of her statement, Rask was working two days a week (a prior accommodation), but was asking to be allowed to take additional, unanticipated days off on short notice.

The court found that while the law requires an employer to make an adjustment or modification that will assist the employee in performing the duties of a particular job, it does not require such action if the purpose of the requested adjustment or modification is to assist the individual in her daily activities on and off the job.

In this case, the court held that the ability to take sudden, unscheduled absences, in light of Rask’s particular job, would simply have been for Rask’s personal benefit, and would not have assisted Rask in performing the duties of her particular job. Therefore, the suggested accommodation was not reasonable and Rask was not a qualified individual under the ADA.

Rask v. Fresenius Medical Care North America, 8th Cir., No. 06-3923 (Dec. 6, 2007).

Professional Pointer: Employers should be careful not to read this case to mean that simply designating a request for accommodation as unreasonable will avoid liability under the ADA. To the contrary, the court in this case took pains to walk through the steps that it used to make its determination, which included: a designation of regular and reliable attendance as an essential function of Rask’s job and a decision that Rask’s statement that she “might” miss some work because of her medication was not a proper request for reasonable accommodation. Had Rask’s request been more specifically job-related, the decision in this case may have been different.

Maria Greco Danaher is an attorney with the firm of Dickie, McCamey & Chilcote in Pittsburgh.

Editor’s Note: This article should not be construed as legal advice.

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