A recent federal court decision reiterates the importance of employers enforcing employee attendance policies to defend against potential lawsuits. In Weber v. BNSF Railway Company, the U.S. Fifth Circuit affirmed summary judgment disposing of an employee’s failure-to-accommodate claims under the Americans with Disabilities Act (ADA), holding that regular worksite attendance, notwithstanding a diagnosis of epilepsy, was an essential job function. The court rejected the employee’s argument that the employer’s prior leniency—in not disciplining the worker for violating its attendance policy—contradicted its position that later absenteeism rendered him unable to perform the essential functions of the job. The Fifth Circuit further affirmed summary judgment on the employee’s second failure-to-accommodate claim because he presented no evidence that a requested alternate position was available.
The plaintiff, Weber, was employed by BNSF as a train dispatcher until his termination in 2016. BNSF maintained an attendance policy that prohibited excessive absenteeism and, after a specific warning to plaintiff and other employees, enforced its progressive discipline policy, which ultimately resulted in termination of the plaintiff’s employment. The Weber court gave significant weight to the employer’s judgment as to which functions were essential and the consequences imposed via its written policies and enforcement of those regulations when employees failed to comply.
Employers should be cognizant that strict adherence to attendance policies, with corresponding notice of such policies to employees and consistent enforcement, are important to defending claims of failure-to-accommodate under the ADA. This ruling clarifies, however, that accommodating employee absences in the past may not be viewed as precedent when an employer later initiates consistent enforcement of the policy with appropriate notice that it intends to do so. As noted in the Weber decision, reasonable accommodation by an employer does not include allowing excessive absenteeism and, if an employee cannot show up for work on a regular and consistent basis, even with or relating to a disability, it is likely that he or she will be held to be not able to perform the essential functions of the job.