Full-Time Attendance Is Not Necessarily an Essential Job Function



​A human resource representative who was diagnosed with postpartum depression and separation anxiety and was fired after she could not return to full-time office attendance stated valid discrimination claims, the 6th U.S. Circuit Court of Appeals ruled.

The plaintiff was hired as an HR generalist by the College of Wooster in late summer 2013. She was hired while she was four months pregnant and was told by Wooster that her pregnancy would be accommodated. Wooster's policy was to allow new employees 12 weeks' unpaid maternity leave under the Family and Medical Leave Act (FMLA), even if they did not qualify for leave under the law.

The plaintiff started her maternity leave at the beginning of February 2014 and took her full 12 weeks, which expired at the end of April. At that time, the plaintiff experienced severe postpartum depression and separation anxiety. Her obstetrician prescribed an antidepressant and recommended that the plaintiff return to work on a part-time basis for the foreseeable future.

The plaintiff met with her direct supervisor and explained that she would need more time before coming back. The plaintiff did not return to work at the end of April, and in the beginning of May she submitted to Wooster an intent to return to work form (under the FMLA) stating that she needed to work a reduced schedule of three days a week.

Her supervisor recommended that she work five half days a week rather than two or three full days a week. Wooster informed the plaintiff that it would accommodate this schedule until June 30, at which time she should submit an updated certification from her doctor. The plaintiff returned to work in late May, having been on leave longer than the originally agreed 12 weeks.

The plaintiff did not provide a new certification on June 30, and in early July, she and her supervisor had multiple conversations about her return to work. One of those conversations included a positive performance evaluation from her supervisor, which did not state any problems with the plaintiff's reduced schedule.

The plaintiff's supervisor later testified, however, that she felt that the plaintiff's modified schedule put a strain on her and the rest of the department. She testified that the plaintiff did not perform crucial functions of her job, such as filling job openings and leading training and lunch programs, and this left the supervisors overwhelmed. An upcoming online benefits project would leave the HR team even more short-staffed.

The supervisor insisted that the plaintiff return to work full time, and the plaintiff suggested that she extend her hours past noon to 2 p.m. or 3 p.m. each day. The plaintiff's doctor submitted a revised certification stating that the plaintiff should continue to work half time but might return to full-time work at the beginning of September. The next day, the supervisor fired the plaintiff for her inability to return to work full time.

The plaintiff brought claims against Wooster under the Americans with Disabilities Act (ADA), Title VII of the Civil Rights Act of 1964, the FMLA and state law. The district court granted summary judgment to Wooster on all claims, finding that the plaintiff could not meet an essential function of the position—full-time work—and so was not otherwise qualified for the job.

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On appeal, the 6th Circuit found that there were genuine disputes of fact that required a trial of the plaintiff's claims. The court found that, while regular, in-person attendance is an essential function of most jobs, it is not unconditionally so. Whether full-time attendance is an essential function is highly fact-specific. Courts may consider as evidence the amount of time an employee spends on a particular function, the employer's judgment, written job descriptions prepared before advertising or interviewing, and the consequences of not performing the particular function.

The court found that Wooster would have to explain why the plaintiff could not complete the essential functions of her job unless she was present 40 hours a week. The plaintiff presented evidence that she satisfied all the core tasks of her position, which was supported by testimony of a co-worker and her positive performance evaluation. The contrary evidence presented by the plaintiff's supervisor did not establish that she was not performing her essential functions but merely created a factual question concerning that issue to be decided by a jury.

Hostettler v. College of Wooster, 6th Cir., No. 17-3406 (July 17, 2018).

Professional Pointer: Unlike in times past, employers cannot merely assert that all positions require full-time, in-office attendance. Rather, the employer must establish through actual duties of the position and evidence of the negative consequences of nonperformance that each position requires full-time attendance as an essential function under the ADA.

Jeffrey Rhodes is an attorney with Doumar Martin in Arlington, Va.