While the Americans with Disabilities Act requires employers to make reasonable accommodations for the mental and physical limitations of otherwise qualified employees with a disability, it does not require employers to set aside their established attendance policy to accommodate disabled employees who simply cannot reliably and regularly make it to work. The recent Eighth Circuit case of Lipp v. Cargill Meat Solutions Corporation demonstrates this principle.
Sheena Lipp worked for 19 years at a Cargill meat processing facility in Ottumwa, Iowa, until she was terminated for absenteeism in November 2014. For most of her employment, she suffered from an incurable lung disease known as eosinophilic granuloma. For the final two years of her employment, this condition limited her ability to work in several ways. She required lifting assistance, limited working hours, and a clean working environment. But most notably also suffered from “flare-ups” that would require her to take off work for a few days at a time, two to four times a year.
Cargill accommodated all of Ms. Lipp’s needs, despite its written attendance policy allowing only six “unplanned” absences (i.e. sick days, personal business, etc.), if reported via an automated call-in system. After those six unplanned absences, a progressive disciplinary system existed, which culminated with termination after the ninth unplanned absence. In the case of medical absences, Cargill’s policy was that employees “may be required” to provide a doctor’s note or other verification upon their return to work.
Ms. Lipp’s ability to satisfy the attendance requirements of her job was further compromised in early 2014, when she was forced to take a nine-month leave of absence (originally planned to be only a few weeks) to care for her ailing mother. The first twelve weeks of leave were protected under the Family and Medical Leave Act. Beyond that, Cargill voluntarily accommodated Ms. Lipp’s request for additional leave, during which time she called the automated phone system daily to report her absences.
When she returned to work in October 2014, Ms. Lipp was presented with a series of written disciplinary notifications, indicating that she had accumulated 194 unplanned absences and was being placed on a “Last Chance” attendance policy. “Employee needs to understand,” the notices stated, “that any call-ins, lates, or leave early without authorization will violate this last chance agreement and will terminate her employment.” Ms. Lipp refused to sign any of the notifications but was allowed to return to work anyway.
Two weeks later, Ms. Lipp called the automated phone system and reported that she would be absent for “vacation.” Her testimony was that she must have mistakenly keyed the wrong entry on the phone system, because her absence was actually due to a “flare-up” of her lung condition. When she returned to work, she was terminated, despite explaining that her absence was for medical reasons, not vacation. Although she eventually provided medical documentation of her flare up, she did not do so until about three months after her termination.
She filed suit for disability discrimination under the ADA, but the Northern District of Iowa granted summary judgment in Cargill’s favor. Although the parties agreed that Ms. Lipp qualified as a disabled employee under the ADA, only “qualified individuals” can assert a claim for disability discrimination. A “qualified individual” is one “who, with or without reasonable accommodation, can perform the essential functions” of his or her job. 42 U.S.C. § 12111(8). An employer’s written policies—including attendance policies—are relevant guidance as to what constitutes an essential function of employment. Cargill insisted Ms. Lipp not a “qualified individual” under the Act, because she could not “regularly and reliable attend work, an essential function of her employment.” On appeal, the Eighth Circuit agreed.
The appellate court relied on a long line of ADA cases holding that “regular and reliable attendance is a necessary element of most jobs,” and that “the ADA does not require employers to provide an unlimited absentee policy.” Ms. Lipp argued that her 195 unplanned absences in 2014 were not excessive, since they were authorized by the employer. The court was unconvinced, noting that “persistent absences from work can be excessive, even when the absences are with the employer’s permission.”
Ms. Lipp also argued that Cargill was required to grant her additional time off for “flare-ups” after her return from the extended leave of absence, as a reasonable accommodation under the ADA—pointing out that Cargill had always been willing to do so in the past. The court rejected this argument, holding that even though medical leave of absence “might, in some circumstances, be a reasonable accommodation,” an accommodation is not reasonable if it requires the employer to set aside the essential functions of the job, including regular and reliable attendance (emphasis supplied by the court).
As for the past pattern of granting Ms. Lipp leave for “flare-ups,” the Court was unwilling to punish Cargill for its history of accommodating Ms. Lipp’s condition: “If an employer bends over backwards to accommodate a disabled worker, it must not be punished for its generosity by being deemed to have conceded the reasonableness of so far-reaching an accommodation.” “To hold otherwise,” the opinion concluded, “would punish Cargill for giving Lipp another chance instead of terminating her employment” earlier.
This case offers lessons for employers facing requests for disability accommodations or potential ADA claims. First, there is a limit to what is a reasonable accommodation for absenteeism. There is no bright-line rule for how much leeway a disabled worker must be given, but if an employee’s disability keeps her away from work so often that she cannot meet the basic requirements of her employment, she is not legally “qualified” for the job under the ADA. Second, employers should not live in fear that they will be punished for good behavior. As this case demonstrates, past acquiescence to a disabled employee’s request for special treatment should not be used to set some new standard for what accommodations are “reasonable” under the ADA.