Blogs

Under the Americans with Disabilities Act (ADA), employers are required to make reasonable accommodations for an employee’s disability. In Lamm v. Devaughn James, LLC, 2022 WL 353500 (10th Cir. Feb. 7, 2022), however, the Tenth Circuit reaffirmed that a proposed reasonable accommodation that would relieve an employee from performing essential functions of the job may not be considered reasonable as a matter of law.

Lamm involved a litigation case manager at a Kansas law firm who was expected to work forty hours per week. The employee, who had a documented history of attendance issues, informed the firm that she suffered from anxiety. She, therefore, sought permission to work half-days on the days she experienced “intense anxiety” as an ADA accommodation. The firm denied the employee’s request and terminated her employment after additional unrelated absences. The employee then sued the firm, alleging, among other claims, a failure to accommodate under the ADA.

To establish a failure to accommodate a claim, a disabled employee must be a “qualified individual” under the ADA. A two-part analysis is used to determine whether an employee is a qualified individual: first, whether the employee can perform the essential functions of the job, and, if not, whether any reasonable accommodation by the employer would enable the employee to perform those functions. Courts look at several factors in interpreting whether a job function is essential, including, but not limited to: (1) the employer’s judgment; (2) written job descriptions; (3) what results if the employee does not perform the function; and (4) current work experience of other employees in comparable positions.

Here, the Tenth Circuit found that the employee’s excessive, and often without warning, absences could not fulfill the essential functions of the firm’s litigation case manager position. Specifically, the firm demonstrated that the position required regular and predictable attendance, as well as completing administrative and client-facing tasks. While the employee tried to contend that her physical presence in the office was not an essential job function, the court found the argument a red herring because she did not ask to work remotely, but, rather, to simply not work for half the day when she was feeling overwhelmed by her anxiety on a unilateral as-needed basis, with no advance notice to her employer. Consequently, because the employee could not perform the essential functions of her job, and no reasonable accommodation would enable her to do so, the court affirmed that she was not a qualified individual for purposes of the ADA.

Lamm demonstrates that employers may not have to permit unpredictable attendance that would prevent an employee from performing the essential functions of their job. Therefore, accurate and up-to-date job descriptions serve as a critical document in the ADA process in determining an employee’s essential job functions.

For best practices, when addressing an accommodation request, employers should engage with their employees in good faith in the ADA-interactive process: communicate with the employee, explore possible reasonable accommodations enabling the performance of essential job functions, and determine whether the proposed accommodation poses an undue hardship or direct threat. Employers should ensure that every step of the interactive process from the initial request through the selection and implementation of the accommodation (or denial of the accommodation request) is well-documented to best position itself if the decision is subsequently challenged.

Please reach out to Employers Council if you have additional questions regarding your organization’s responsibilities under the ADA.