An employer’s past leniency in applying and enforcing its attendance policy did not contradict the employer’s later position that regular worksite attendance was required for employment, the U.S. Court of Appeals for the Fifth Circuit has held. Weber v. BNSF Railway Co., No. 20-10295 (5^th Cir. Feb. 24, 2021).

This provides guidance for employers unsure whether accommodating an employee’s absences creates a “precedent” making it harder in the future to establish that regular attendance is an essential job function. The Fifth Circuit has jurisdiction over Louisiana, Mississippi, and Texas.

Background

Jay Weber was employed as a train dispatcher by BNSF Railway until his termination in 2016. The employer maintained an attendance policy that prohibited “excessive absenteeism,” which it defined as excessive absences that “disrupts the regular working schedule of other dispatchers in their assigned office.” It maintained a progressive discipline policy under which the gravity of disciplinary action increased with the number of attendance violations.

Throughout his tenure, Weber violated BNSF’s attendance policy many times, leading to disciplinary action. Prior to 2014, BNSF did not consistently apply its attendance policy, but, in 2014, it implemented a new enforcement strategy that required more accountability for violating the attendance policy.

In 2015, Weber had a seizure and was diagnosed with epilepsy. BNSF placed him on a three-month leave of absence because he could not safely perform his job as a dispatcher. When Weber’s doctor cleared him to return to work, Weber sought two accommodations: (i) time off to attend doctor visits to monitor his epilepsy; and (ii) time off when he experienced “triggering events” that may increase the risk of seizure, such as sleeping fewer than four hours.

While BNSF was lenient toward absences in the past, it put Weber on notice that violations of BNSF’s attendance guideline “could result in further disciplinary action.” Under the employer’s progressive discipline policy, the company disciplined Weber for excessive absenteeism and later terminated him on May 18, 2016.

Weber sued BNSF under federal and state law, arguing that the employer failed to accommodate his absences because regular worksite attendance was not an essential function of his job since BNSF was previously lenient with his attendance.

The district court granted summary judgment for BNSF, determining that the evidence raised no dispute of fact and that Weber failed to show he was a “qualified individual with a disability.” Weber appealed.

Attendance is Essential

The Fifth Circuit Court affirmed summary judgment in BNSF’s favor. It concluded that regular worksite attendance, in fact, was an essential function of most jobs.

In determining whether a function is essential, the court looked at the employer’s judgment as to which functions were essential and the consequences of not requiring an employee to perform those functions. Against this standard, the court highlighted several factors based on BNSF’s policies and practices demonstrating that regular attendance was an essential function of Weber’s position. Similarly, the court found that the “consequences” factor also supported a determination that regular worksite attendance was essential to Weber’s position, because the position was essential to operations and his failure to regularly show up to work forced BNSF to find coverage.

As to Weber’s argument related to BNSF’s prior leniency with attendance, the court explained that, while BNSF was lenient in the past, it had now opted for more strict enforcement and provided employees with notice of this change. The court, therefore, did not have to ignore the evidence that regular worksite attendance was essential where there was evidence the employer changed its enforcement practices regarding attendance.

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Generally, regular attendance at work is considered an essential function of employment. Employers that have a past practice of accommodating employee absences may not necessarily be precluded from arguing that regular worksite attendance is an essential function in the future, where they can show that, in their judgment, words, policies, and practices, the employer has considered regular attendance to be essential to the job in question.

Job-protected time off remains an accommodation that employers must consider. As employers continue receiving requests to excuse absences as an accommodation, it is important to ensure that there is strict adherence to attendance policies, that employees are on notice of attendance policies, and that employers implement and consistently enforce such policies.