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Employer Able Tie Regular Attendance to Essential Function

Adrianne Popeck suffered from irritable bowel syndrome (IBS). She was hired by Rawlings, Co., LLC prior to her diagnosis and had a successful first few years of employment. After her diagnosis, Popeck requested and was granted intermittent leave under the Family and Medical Leave Act (FMLA). Through this leave, she could arrive late or leave early when her severe stomach cramping or sudden diarrhea came on. As this continued, management became concerned about her coming late, leaving early, taking excessive breaks as well as underperforming. Popeck was demoted back to an entry-level auditing position. She used up all of her FMLA leave; she then applied for and was granted an Americans with Disabilities Act (ADA) accommodation to arrive late or leave early until she was eligible again for FMLA leave. During this period, she was disciplined for arriving to work late and/or departing early 14 times. Her reasons were not related to her IBS. When she again exhausted her FMLA leave and her accommodation request for gap-filling leave was denied, she was thereafter terminated for missing too much work.

In an unpublished opinion, the Sixth Circuit Court of Appeals ruled on Popeck’s claim that Rawlings violated the ADA by failing to accommodate her and firing her. The court looked to determine whether “regular, in-person attendance” was an essential function of her auditor position. Evidence showed that auditors needed to access information about healthcare claims from secure computers in Rawlings’ offices and in fact, the company prohibited auditors from working remotely due to the “large volume of confidential and HIPAA protected personal information.”

Propeck argued that other employees were permitted to work remotely. The Court rejected this argument because those employees had different functions than auditors. Moreover, the appellate court did not find Propeck’s proposed accommodation would allow her to perform the essential functions of her position. Arriving late and leaving early would not allow her to engage in “regular, on-site” attendance when she had missed work nearly 60% of the time according to the evidence. Based on its fact-intensive evaluation, the circuit court concluded that Rawlings had established that Propeck was not qualified for her position.