In-Person, Predictable Attendance Was an Essential Job Function

​A flexible work schedule with unpredictable hours is not a reasonable accommodation when the essential job functions require physical presence on a set and predictable schedule, according to the 10th U.S. Circuit Court of Appeals.

The plaintiff worked as a clinical dietician and commuted approximately 60 miles each way to her job at the employer's hospital facility. She eventually became legally blind and could no longer make the drive, although she could perform her job tasks at the hospital with the assistance of visual aids provided by the employer.

She relied upon her family and friends to make the hour-long commute but could not guarantee when she would be physically present. Following her request for an accommodation, the employer permitted the plaintiff to work a flexible schedule to accommodate her transportation needs. The employer tried this arrangement for 15 months, but the plaintiff's erratic attendance and lack of physical presence resulted in customer complaints and poor patient satisfaction.  

The plaintiff requested to reinstate the flexible schedule after the 15-month period, but then went on full-time extended medical leave. After seven months of medical leave with no confirmed return-to-work date, the employer terminated the plaintiff, explaining that "predictable and regular attendance" was an essential function of her job. This function required the plaintiff to meet with patients, assess their condition and perform other tasks at the hospital in person.  

She sued the employer for disability discrimination in violation of the Americans with Disabilities Act (ADA) and the Colorado Anti-Discrimination Act. The plaintiff alleged that the employer failed to accommodate her disability, failed to engage in the interactive process and retaliated against her for reporting discrimination.

The lower court rejected all the plaintiff's theories of liability and entered judgment in favor of the employer. She appealed the district court's decision only as to her failure to accommodate claim.

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The 10th Circuit agreed with the lower court's findings that:

• An essential function of the clinical dietician position was the plaintiff's physical presence at the hospital on a set and predictable schedule.
• The plaintiff could not perform this essential job function with or without a reasonable accommodation.

The appeals court noted evidence that the position generally required the plaintiff to work in close contact with patients and cover most of the hospital, both of which required in-person and predictable attendance. Accordingly, the plaintiff's request was unreasonable. 

Further, as transportation to and from work was unrelated to the essential functions of the clinical dietician position, the employer was under no legal obligation to accommodate the plaintiff's driving challenges.

Unrein v. PHC-Fort Morgan Inc., 10th Cir., No. 20-1219 (April 8, 2021).

Professional Pointer: Employers should try to work with employees to find solutions to their work challenges, even those outside of the workplace; however, employers are not required by the ADA to excuse employees from essential job functions. Now that teleworking has become the norm in many industries, an employer who needs its employees to return to work should reiterate to its employees that in-person attendance is an essential job function and that working from home was only a temporary accommodation during the height of the COVID-19 pandemic.

Cecily Kaya is an attorney with Marr Jones & Wang LLP, the Worklaw® Network member firm in Honolulu.