Employers and employees, alike, often misunderstand the requirements of the Americans with Disabilities Act and Family Medical Leave Act. Some employees believe that employers must accommodate just about anything, and some employers fear that is true. Two recent decisions from the Seventh Circuit Court of Appeals, which covers the state of Illinois, provide some clarity.
In Basden v. Professional Transportation, Inc., Case No. 11-2880 (7th Cir. 2013), a woman experiencing symptoms from suspected multiple sclerosis missed work on a number of occasions. Each absence resulted in discipline based on the employer's attendance policy. She was eventually put on suspension (the final step before termination), at which time she requested a 30-day medical leave for “complications due to medical illness (MS).” The employer denied her request because she had not yet worked a year (a condition of the leave). When she was absent again after the suspension period ended, the employer terminated her for violation of the attendance policy.
The employee claimed her termination violated the ADA, but the Court disagreed. The court declared that an employer “is generally permitted to treat regular attendance as an essential job requirement and need not accommodate erratic or unreliable attendance.” According to the Court, “an employee whose disability prevents her from coming to work regularly cannot perform the essential functions of her job, and thus cannot be a ‘qualified individual’ for ADA purposes.” Because there was no evidence demonstrating that the employee could come to work regularly, or that regular attendance was to be expected, with or without some other form of accommodation, the Court found that the employer was justified to terminate her.
In Majors v. General Electric, 714 F.3d 527 (7th Cir. 2013), an employee was subject to a permanent 20 pound lifting restriction by declaration of her attending physician. She requested that another employee be assigned to perform the lifting required for the job she sought. Lifting more than 20 pounds was considered an essential function of the position. The employer refused the request. The employee sued, but the court summarily rejected her claim as a matter of law: “To have another employee perform a position’s essential function, and, to a certain extent perform the job for the employee, is not a reasonable accommodation.”
The ADA is a balancing of employer and employee considerations. There is no “duty to accommodate” unless an employee is able to perform the job in the first place. The job to be performed must be established clearly by the employer by defining the “essential job functions”. When the essential job functions are clearly defined, and the employee is unable to perform them, the ADA does not require the employer to accommodate the employee. Determining the essential job functions when an employer has not taken the time to define them specifically can be problematic, but that is the subject of another article.