Timely Attendance Is Essential Job Function for Audiologist


By Jeffrey Rhodes January 7, 2020
hearing aid fitting

​An audiologist who had 60 documented instances of tardiness in a two-year span could not perform the essential functions of his position under the Americans with Disabilities Act (ADA), the U.S. District Court for the Eastern District of Pennsylvania ruled.

The plaintiff was a clinical audiologist hired by the University of Pennsylvania in 2013. He saw patients in a clinical setting where he conducted hearing tests and fitted hearing aids. From 2013 to 2016, the plaintiff worked five days a week from 8 a.m. to 4:30 p.m., splitting his time between the audiology department's University City and Radnor, Pa., locations. The plaintiff was a skilled audiologist, and he received accolades for his performance.

In 2016, the plaintiff started showing up late to work without informing his supervisor in advance. The departmentwide policy required employees to text the supervisor by 7 a.m. anytime they were running late or had a last-minute unscheduled absence. In 2016 alone, the plaintiff arrived late to work 23 times. The plaintiff often texted his supervisor with reasons to explain his tardiness, including that he was attending a yoga class, forgot his phone, was facing traffic delays, was waiting for stalled buses, had to pull his car over because he felt ill, got lost and was getting coffee before work.

The supervisor met with the plaintiff in the fall of 2016 to discuss his tardiness and consider solutions. The plaintiff asked to modify his start time to 8:30 a.m. and to work exclusively at the University City location. His supervisor granted these requests and implemented them in January 2017.

In 2017, even with the adjusted schedule in place, the plaintiff continued to arrive late. The plaintiff's chronic tardiness and failure to abide by the call-out policy prompted the supervisor to e-mail the university's HR department to initiate a formal performance improvement plan.

The supervisor issued coaching and a first written warning and suggested that the plaintiff apply for Family and Medical Leave Act (FMLA) time off. The supervisor issued a second written warning followed by a final written warning in September 2017 for additional late arrivals. By that time, the plaintiff had begun the FMLA paperwork but had not yet submitted it.

Shortly after receiving the final written warning, the plaintiff saw his nurse practitioner, who noted that his anxiety had worsened. Four days later, the employee assistance program counselor submitted a medical certification in support of FMLA leave, stating that the plaintiff had a generalized anxiety disorder and recommending a psychiatric evaluation and assessment for medication.

The university approved the plaintiff's intermittent FMLA leave, allowing him two three-hour absences per week. The approval letter stated that the plaintiff was expected to follow the regular call-out procedures for his department and to make clear when calling out that the time off was for FMLA. Yet the plaintiff recalled that an HR employee told him he needed to say he was using FMLA when calling out only because his disability prevented him from calling in before 7 a.m.

The plaintiff was allowed to use FMLA leave in September 2017 even though he was late calling out. His supervisor told him he still needed to comply with the 7 a.m. call-out policy even when using FMLA leave. The plaintiff asked HR later that day, and HR told him that he could still be held accountable for failing to follow the 7 a.m. call-out procedure. The supervisor also sent a departmentwide email reminding all employees of the procedure.

On Nov. 29, 2017, the plaintiff once again arrived late to work—this time at 11:28 a.m.—without informing his supervisor in advance. He did not attempt to invoke FMLA leave that day. As a result, the university fired him on Dec. 6, 2017.

The plaintiff filed a lawsuit against his supervisor and the university for discrimination and retaliation under the ADA and Pennsylvania law, failure to accommodate his disabilities, interference with his FMLA benefits and retaliation for taking FMLA leave.

[SHRM members-only toolkit: Accommodating Employees' Disabilities]

The defendants filed a summary-judgment motion, arguing that an essential function of the clinical audiologist position was showing up on time for patient appointments. While the court noted that timely attendance might not be an essential function for some positions—even managerial positions—the same could not be said for patient care positions in the health care industry. Rather, for such positions, regular and predictable onsite attendance is an essential function of the position.

The court also reasoned that the FMLA generally permits the enforcement of standard call-out procedures, which supported the termination decision. As a result, the court granted summary judgment and dismissed the plaintiff's claims.

Albright v. Trustees of the University of Pennsylvania, E.D. Pa., No. 19-00149 (Oct. 18, 2019).

Professional Pointer: Employers might be surprised to learn that timely attendance is not necessarily an essential function of every position. As a result, they may have to consider adjusting the schedule of an employee with a disability unless there is a strong reason for refusing the accommodation, such as the need to timely treat patients in the health care industry.

Jeffrey Rhodes is an attorney with McInroy, Rigby & Rhodes LLP in Arlington, Va.

[Visit SHRM's resource page on the Americans with Disabilities Act.]


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