Excessive Job Absences and Unreasonable Request For Accommodation Defeats ADA Claim, 7th Circuit Rules

A disabled employee who had "excessive" job absences did not have legal standing to sue under the Americans With Disabilities Act (ADA) because an essential function of his job was regular attendance, which he failed to fulfill, the 7th U.S. Circuit Court of Appeals ruled. As a consequence, the employee was not a "qualified individual" with a disability -- a distinction that has implications under group health plans regarding whether an individual's right to those benefits is protected under the ADA.

Furthermore, the court held that the employee's request of unlimited sick days due to AIDS as a reasonable accommodation under the ADA was in fact unreasonable, particularly in light of his poor attendance record. Therefore, the court affirmed a lower court decision in the employer's favor. The case is Equal Employment Opportunity Commission v. Yellow Freight System, Inc., 2001 WL 641800 (7th Cir., June 12, 2001).

In its decision, the 7th Circuit emphasized that: (1) the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability; and (2) an employer is only obligated to provide a reasonable accommodation -- not necessarily an accommodation the employee requests or prefers.

Facts of the Case

Michael Nicosia was a full-time dockworker at Yellow Freight System, Inc. The company had a five-step progressive discipline system for employees with excessive absences: (1) a coaching session; (2) a letter of information; (3) a written warning; (4) suspension; and (5) termination.

Between 1991 and 1995, Nicosia's attendance record was "woeful." In November 1995, Nicosia told his supervisor that he needed time off for an unspecified medical problem. Instead of following his supervisor's advice to take a 90-day unpaid leave of absence, he called in sick for the next two weeks. Nicosia was eventually diagnosed as HIV positive, and as his condition deteriorated, so did his work attendance, which prompted Yellow Freight to initiate its disciplinary system. After the coaching session and letter of information was provided, Nicosia sent a letter to the company asserting his ADA rights. The company responded by sending Nicosia an ADA accommodation review form, along with a letter stating that it understood that Nicosia was requesting an ADA accommodation. The form required Nicosia to list his condition, describe the requested accommodation and identify his health care providers.

Nicosia did not fill out that form. Instead, he returned the uncompleted form along with a letter "requesting no particular considerations" other than "reasonable accommodations necessary to monitor and maintain my health status" -- to include "sick days, if needed[,] without being penalized."

After Nicosia missed 10 out of the next 19 calendar days, the company suspended him for one day. In response, Nicosia sent a letter promising to "report to work every day to fulfill my duties."

In October 1996, Nicosia filed charges with the Equal Employment Opportunities Commission (EEOC) claiming that Yellow Freight had disciplined him because of his disability and had denied him a reasonable accommodation. Yellow Freight terminated Nicosia in December 1996 for excessive absenteeism. Nicosia then filed a second charge with the EEOC alleging, among other things, that he had requested an accommodation that was denied, and he was illegally discharged. EEOC and Nicosia then sued Yellow Freight, claiming that the company had discriminated against Nicosia in violation of the ADA.

A federal district court ruled in the company's favor, finding that: (1) Nicosia was not a qualified individual under the ADA; (2) regular attendance at the job site was an "essential function of Nicosia's job"; and (3) Nicosia's request for as-needed sick days without penalty was not reasonable under the law. Nicosia appealed (but the EEOC did not).

Discrimination Claim

The court noted that the ADA provides that no covered entity shall discriminate against a qualified disabled individual in the terms, conditions and privileges of employment. To that end, the court stated that Nicosia had to show that he is a disabled individual who, with or without reasonable accommodation, can perform the essential functions of his job.

Therefore, the court noted that the "critical question" was whether regular attendance was an essential function of Nicosia's job, and if so, did he fulfill that function. The court added that Yellow Freight's patience with his poor attendance "does not necessarily mean that every company must put up with employees who do not come to work . . . [or] hire replacements for absent employees and call that a reasonable accommodation. The issue before us is, when is enough, enough?"

The court then indicated that it -- as well as other courts addressing the issue -- have concluded that the ADA does not protect persons who have erratic, unexplained absences, even when those absences are a result of a disability. It added that attendance at the job site is a basic requirement of most jobs.

The court noted that Nicosia's work had to be done on site, and "the ability to maintain good attendance" and "to work on" available shifts "plus any required overtime" were listed as "minimum qualifications" in employee materials that described the full-time dockworker position which Nicosia had.

Accordingly, the court determined that Nicosia did not fulfill the essential requirements of his job; that is, regular job attendance. Furthermore, he was disciplined by Yellow Freight (as were 90 chronically absent employees before him) before he gave notice of his diagnosis with AIDS-related cancer. Therefore, the court concluded that Nicosia failed to prove that he was a qualified individual under the ADA, and ruled in Yellow Freight's favor on the discrimination claim.

Reasonable Accommodation Claim

The court noted that Nicosia's letter to Yellow Freight requested reasonable accommodations necessary to include "sick days, if needed[,] without being penalized." The court found such a request to be unreasonable under the ADA. It reiterated that businesses are not required to tolerate erratic, unreliable attendance or to provide an accommodation that would impose an undue hardship. The court added that Yellow Freight offered Nicosia a 90-day leave of absence, which he refused to accept, and sent him an ADA accommodation review form, which he refused to fill out. The company's actions during the "accommodation process" were sufficient, especially given Nicosia's unreasonable request for unlimited time off and his poor attendance record, according to the court. Therefore, it affirmed the lower court decision.

Four circuit judges dissented however, arguing that while they agreed with the ADA's general legal principles, the majority overlooked genuinely disputed material facts in the case, such as: (1) Yellow Freight's attendance policy -- in the dissent's view, questions existed over whether regular attendance was in fact a requirement and whether Nicosia did actually violate company policy; (2) Yellow Freight's "suspicious" escalation of its response to Nicosia's attendance problems after his ADA-protected illness was revealed; (3) the lack of reliance on case law showing that attendance is always, invariably, an essential job function; and (4) who was actually responsible for the breakdown in the ADA's accommodation process -- both the employer and employee are responsible for making the process work, but the dissent stated that neither party took a "model approach" to determining what reasonable accommodation might have been possible. Accordingly, the dissent stated that it would have reversed and remanded the discrimination and accommodation claims for further proceedings.

Implications

Not everyone with a disability is protected under the ADA. The person must have a protected disability and must be deemed "qualified" for ADA purposes. Such a qualification may have implications for benefits as a term and condition of employment.

Most cases of whether a person is protected and more accommodations must be made will not seem as obvious as in the facts presented by the majority in Yellow Freight. Another issue exists for benefits. If the person is not a qualified protected disabled individual for employment purposes, does that mean that he or she automatically is not protected for benefit purposes?

Excerpted from the September 2001 supplement to Employer's Guide to Self-Insuring Health Benefits,, ©Thompson Publishing Group, Inc., 2001. All rights reserved.

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