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Regular Attendance is Essential Function Even When Prior Allowances Made

Union Pacific Railroad (Union Pacific) entered into a settlement agreement with Jon Higgins in 1992 after he suffered two spine-related injuries while performing his job as a locomotive engineer. As part of the settlement agreement, Higgins was given “the right to lay off whenever his back bother[ed] him.” When Higgins was released to work, the doctor stated the only restriction was that “on occasion” he “should not go out more often than every 24 hours.” These restrictions were reiterated in 1999 with Union Pacific’s agreement.

In 2004, Union Pacific hired Michael Humpherys to oversee attendance and training. Higgin’s job description stated that full-time attendance was an essential function of the position. Trying to reduce the frequency of engineers rejecting shifts, Humpherys reviewed attendance data and found that Higgins ranked very low in attendance. Humpherys notified Higgins that his attendance must be improved. When Union Pacific experienced a shortage of workers in the face of increasing business, the focus on attendance increased with warning letters sent out. Higgins continued to reject shifts when he was having back pain. Ultimately, Union Pacific found that allowing 24 hours of rest between every shift could not be accommodated because 90% of his shifts required him to work on less than 24 hours rest. (There was some dispute over the requested accommodation, Higgins claimed that the 24 hours rest was only as needed.)

Higgins filed a lawsuit alleging a violation of the Americans with Disabilities Act (ADA). Under the ADA, employees must be able to perform the essential functions of their positions with or without accommodation. The Eighth Circuit Court of Appeals heard the appeal. Here, Union Pacific’s policy requires attendance and that employees be available to work when scheduled. The company’s allowance of employees to reject shifts in some special circumstances did not alter the requirement. Higgin received repeated warnings about his attendance which also supported Union Pacific’s position that it was an essential function. The fact that the company previously accommodated his needs and included that in the settlement agreement does not “create a material question of fact regarding whether job attendance is an essential function.” Moreover, Higgin’s requested accommodation was not reasonable because other employees would have to cover his shifts and it was tantamount to an “unlimited absentee policy,” which was “unreasonable as a matter of law.”