A federal district court in Indiana has rejected an employer’s argument that attendance is an essential function, citing two reasons for denying summary judgment: that the job description “is silent as to whether attendance is an essential function” and that the company has 22 “formal” leave of absence plans. EEOC v. AT&T Corp. (D. IN. November 20, 2013).
The message to employers concerning job descriptions is clear: each job description should state that regular and predictable attendance is an essential function of the job, assuming that is the case. That same message should be delivered regularly—in offer letters, orientation, work rules and performance evaluations.
The court’s reliance on the employer’s 22 leave plans presents a greater challenge. It creates a “Catch-22” for employers. The more generous an employer’s leave policies, the more likely attendance is not an essential job function, the argument goes. The fewer leave plans an employer has, the more likely attendance is an essential function. Public policy should encourage employers to grant leaves beyond what the law requires. In using a generous leave policy against an employer, the phrase “no good deed goes unpunished” comes to mind.