There’s an old saying in rural America that "pigs get fat and hogs get slaughtered." We used the phrase to describe someone who, instead of being satisfied with what he has, gets greedy. In the litigation context it can be used to describe a party that takes overly aggressive, unreasonable and untenable positions. My fellow bloggers, Work Blawg and Employment and Labor Insider posts last week about the EEOC’s apparent position that attendance is not an essential job function (or not working as Work Blawg refers to it) makes me think the EEOC might be getting a little Hog-like in its attack on employer leave of absence and attendance policies. The issues comes up in discussions of Verizon’s record-setting $20 million settlement with the EEOC over its no-fault attendance policy. As Robin Shea points describes the dispute that was settled:
The case was about charging absences under a no-fault attendance policy to employees who missed work because of medial conditions that were ‘disabilities’ within the meaning of the ADA. It does not appear that medical leaves were at issue. Exempting ADA conditions from no-fault attendance policies is a huge deal.
With the Verizon settlement, the EEOC is apparently signaling that it believes an employer commits a violation of the ADA when it charges an employee absence against a no-fault attendance policy when the absence results from a medical condition that qualifies as a disability. Because the ADAAA now renders everyone disabled, the EEOC’s position is troubling. It suggests that the EEOC believes that attendance is not an essential function of most jobs.
The problem with the EEOC’s position (and where it crosses the line from being piggish to hoggish) is that the ADAAA made no changes to what is considered an essential job function or the well-settled standard that an employer need not eliminate essential job functions in providing reasonable accommodation. Certainly, the ADAAA has given the EEOC ample reason to be aggressive in litigating issues on what constitutes a disability or is a substantial limitation on a major life activity. However, the ADAAA made no changes to the statute regarding what constitutes reasonable accommodation or essential job functions. Most courts have held that attendance is an implicit, essential job function of most employment. Consequently, the EEOC’s position that attendance is not an essential job function and employees cannot consider absences caused by "disabilities" under no fault attendance policies is puzzling. If accepted by the Courts, the EEOC’s position would require employer’s to investigate each and every absence to determine whether the employee is disabled and whether absence was caused by a disability.
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