Minnesota Judge Says Good Attendance Is An Essential Job Function

  • Jul 17, 2019
  • ADA
  • Dennis J. Merley

A Minnesota Federal Judge just reminded us of two items that are critical to employers: (1) good attendance can be an essential job function, and (2) employers can insist that employees follow reasonable absence-reporting procedures in order for time off to be protected under the Family Medical Leave Act (FMLA).

Tori Evans worked as an administrative assistant at the Austin, MN, office of Cooperative Response Center, Inc. (CRC), an alarm monitoring service.  As the sole administrative employee, attendance was a critical factor in her job since many of her reception, billing, and clerical responsibilities needed to be performed on a daily basis and other employees would have to be pulled off their jobs when she was absent.

CRC maintained a no-fault absence policy that assigned “points” when an employee was absent without advance notice.  Employees received progressive discipline as they accrued points, up to termination upon the 10th assessed point within a rolling 12-month period.  Points were not assessed for absences under an approved FMLA leave.

Employees were required to report all intended absences (including those qualifying as FMLA intermittent leave) to the supervisor or manager before the beginning of the shift.  They also had to inform the Human Resources Department if they wished to take a FMLA qualifying leave.

Employee is Out…and Out…and Out…

Evans was approved for an intermittent FMLA leave in early 2016 for mouth sores and related symptoms. In June 2016, she was approved for another FMLA leave due to an autoimmune disorder.  Her medical certification for this leave stated that she would need to miss up to four hours of work once or twice a month for medical appointments, and would likely have one or two absences a month for flare-ups.

In approving the leave, CRC informed Evans that absences beyond the FMLA-approved frequency would count under the attendance point system and reminded her that the policy regarding reported intended absences still applied to her intermittent leave days.

Thereafter, Evans used more than 30 FMLA days and incurred an additional 11 unplanned absences that counted as points under the attendance policy.  These points were assessed for:

  • Absences for FMLA conditions that exceeded the projections in the FMLA certification;
  • Absences for non-FMLA reasons; and
  • Failing to report her absences in accordance with the company policy.

Her final two points were assessed for (1) an absence because she lost her voice, and (2) an early departure for a fever, neither of which were covered under the FMLA certification.  Accordingly, Evans was terminated on March 27, 2017.

You Should Have Been There

Evans sued CRC in federal court under federal and state law discrimination laws alleging that she was fired due to her disability and that CRC failed to accommodate her.  She also claimed that CRC interfered with her FMLA rights by assigning her attendance points for FMLA-related absences.  CRC filed for summary judgement and Minnesota Federal District Court Judge Ann Montgomery dismissed the case on all counts.

Judge Montgomery first addressed the disability discrimination claim, noting that Evans had to demonstrate that she was a qualified disabled person by establishing that she could perform the job in question.  The judge explained, however, that the Eighth Circuit Court of Appeals (which covers Minnesota) has found repeatedly that “regular and reliable attendance is a necessary element of most jobs.” In light of the impact caused by Evans’ excessive and unpredictable absences, Judge Montgomery dismissed the claim, because Evans was unable to perform the essential function of regular and reliable attendance.

Since Evans was not a qualified disabled person, Judge Montgomery also dismissed the failure to accommodate claim, because accommodation is only required for someone meeting the qualified disabled person standard.  In addition, the only accommodation that Evans sought was the ability to use more FMLA time than the amount for which she had been approved. However, the request to be allowed to miss more work would not have facilitated (and actually was antithetical to) Evans’ ability to perform the essential function of maintaining regular and reliable attendance.  Therefore, the requested accommodation was not reasonable.

You Should Have Said Something

Evans’ FMLA claim centered upon her contention that her last two absences should have alerted the employer to the fact that she required more FMLA leave.  Judge Montgomery pointed to two critical FMLA regulations that applied: the first explicitly permits employers to require adherence to their normal call-in and notice procedures; the second states that an employee seeking FMLA treatment for an absence must either reference the qualifying condition or identify FMLA as the reason for the leave – merely “[c]alling in sick without providing more information will not be considered sufficient notice to trigger an employer’s obligations under the Act.”

The Judge found that the two absences in question did not relate to the reasons for her first FMLA leave (mouth sores) or the second leave (autoimmune disorder).  As such, it was proper for CRC to consider them as non-FMLA absences.  In the alternative, if Evans truly believed that the absences triggered CRC’s FMLA obligations, she failed to comply with company policy requiring employees to tell HR that they needed a FMLA leave.  Either way, it was proper for CRC to consider these absences as non-FMLA protected and therefore, subject to attendance points and their natural consequences.

Finally, Evans argued that she should not have been limited to just the number of absences cited in the certification.  Judge Montgomery noted that the FMLA regulations do provide that when the circumstances of a leave change, such as the duration or frequency of absences, employers should seek recertification of the leave.  However, the record reflected that CRC did seek recertification and Evans’ doctor reaffirmed the original number of likely absences set forth in the certification.  Thus, Evans’ contention in this regard had no merit.

Bottom Line

This is a welcome decision that reminds us that reasonable attendance policies and call-in procedures will often be given deference by the courts.

Note – Shortly after this article was posted, the 8th Circuit Court of Appeals handed down a decision in Higgins v. Union Pacific Railroad declaring that attendance is an essential function of the job of locomotive engineer.  This is just further affirmation of the Court’s inclination to rule this way in regard to most jobs.