Excerpted from a Shawe Rosenthal, LLP blog by Fiona W. Ong

Some disabilities may indeed prevent employees from showing up regularly for work. But according to the U.S. Court of Appeals for the Fifth Circuit, that could also mean the employee is not qualified for the position and, therefore, is not entitled to protection under the Americans with Disabilities Act (ADA).

In order to sustain a claim under the ADA, a plaintiff must establish they are qualified for the position, meaning they can perform the essential functions of the job with or without a reasonable accommodation.

In the February case Weber v. BNSF Railway Co., the employee had numerous attendance violations and was eventually terminated. In the lawsuit, he argued that attendance was not an essential function of his job because the company exercised “managerial leniency” with regard to many of his absences.

The Fifth Circuit rejected the employee’s contention. In determining whether regular attendance is an essential function, the Fifth Circuit looks to the employer’s judgment as well as the consequences of not requiring regular attendance. As noted above, the Fifth Circuit asserted that regular attendance is an essential function in most jobs.

With regard to this case, a high-level operations official testified to the need for regular attendance, which was bolstered by the company’s longstanding attendance policy. In addition, the Fifth Circuit noted that the consequence of the employee’s absence was the employer’s need to find coverage for the vacancy.

The Fifth Circuit found the employee’s reliance on past managerial leniency to be without merit, since the employee was provided clear warnings before his last five absences that he was being assessed for a one-year period and future absences could result in further disciplinary action, including termination.

This case provides support for the employer’s ability to hold employees accountable for attendance, even in some situations where the employee’s absences are caused by their disability.

Of course, the employer must be able to demonstrate that attendance is an essential function of the job in question. But, at least in the Fifth Circuit, this showing may be rather easily met. Other jurisdictions, however, may apply a higher standard, and thus it is important for employers to consult with counsel to verify the legal standard applicable to their location.