The Eleventh Circuit recently addressed whether employers can hold disabled workers to strict punctuality standards if punctuality isn’t an essential function of their jobs. Holly v. Clairson Industries, LLC gives employers valuable guidance on how to determine whether a specific function is indeed essential.

Workplace Woes

Because of his medical condition, a paraplegic mold operator was occasionally tardy. After adopting a no-fault punctuality policy, his employer eventually fired him for tardiness.

In 17 years on the job, the operator had never failed to put in at least a full workday or complete his work on time. His supervisors praised his job performance, and the employer conceded that — aside from the tardiness — he was a good employee.

The operator alleged violation of the Americans with Disabilities Act (ADA). The trial court ruled for the employer. It found that strict punctuality was an essential function of the job that the operator couldn’t perform — with or without reasonable accommodation.

On appeal to the Eleventh Circuit, the operator countered that clocking in at exactly 7:00 a.m. each morning was only a marginal job function. He argued that the employer could have reasonably accommodated him by permitting him to occasionally clock in late and make up the time during breaks or at the end of his shift.

The Relevant Law

The Eleventh Circuit found that under the ADA, an accommodation is reasonable — and thus necessary — only if it allows the employee to perform a job’s essential functions. The Equal Employment Opportunity Commission (EEOC) defines “essential functions” as the basic job duties an employee must be able to perform, with or without reasonable accommodation.

The court explained that the statute doesn’t require an employer to eliminate an essential job function because a disabled employee can’t perform it. But the ADA may require an employer to restructure a job by altering or eliminating some marginal functions.

The court noted that it took into consideration the employer’s judgment about which functions were essential, including testimony from a disabled employee’s supervisor. Two of the operator’s supervisors testified that his job was not time-sensitive and “precise punctuality didn’t matter.”
But an employer’s judgment isn’t conclusive on the issue. Whether a function is essential is determined case by case, applying several additional factors, including:

• The amount of time spent performing the function
  
• The consequences of not requiring an employee to perform it,
  
• The terms of a collective bargaining agreement,
  
• The work experience of previous employees in the position, and
  
• The current work experience of employees in similar jobs.

Furthermore, EEOC rules identify three nonexclusive bases on which to consider a function essential: 1) the job exists to perform the function, 2) the function can be distributed among only a limited number of available employees, or 3) the function is highly specialized, and the employee was hired for his or her ability to perform the function.

The Court’s Analysis

The Eleventh Circuit found that several of the factors didn’t apply here, while others applied somewhat but weren’t “very illuminating.” Instead, the court focused on the consequences of not requiring the operator to perform “the function of strict punctuality.”

The employer claimed the consequences would prove dire because the operator was one of many employees involved in assembling products, and tardiness can slow assembly. But the court noted that he didn’t work on the assembly line. Rather, the mold shop where he worked was separate from the line, and he polished the molds after they came off the line. The employer presented no evidence that the other polishers would need to wait for his arrival to perform their own work or that a mold polisher’s tardiness could delay any of the post-polishing stages.

The court ultimately reversed the trial court’s judgment and sent the case back for a jury trial.

The Question of Discrimination

The trial court had held that its judgment was also warranted because the operator didn’t show that he was treated differently from nondisabled employees who violated the punctuality policy.

According to the Eleventh Circuit, an employer’s failure to reasonably accommodate a disabled worker itself represents ADA discrimination, assuming an employee is otherwise qualified and the employer can’t show the accommodation to be an undue hardship. An employee needn’t establish that the employer enforced its policy discriminatorily.

While the failure to reasonably accommodate satisfies the ADA’s discrimination requirement, the employee must nonetheless prove that the discrimination occurred because of the disability. Here, the operator would need to show that if the employer had reasonably accommodated his disability and allowed him to be tardy occasionally, he wouldn’t have been fired.

The Lesson

Employers may find it tempting to adopt strict attendance or punctuality policies, but they could have ADA implications if applied to disabled employees without reasonable accommodation. Liability will hinge on whether attendance or punctuality constitutes an essential function of an employee’s job.