On July 6, 2011, the EEOC announced a settlement with Verizon of a nationwide class action lawsuit alleging that Verizon violated the ADA by refusing to make exceptions to its “no fault” attendance plans to accommodate employees with disabilities. According to the EEOC’s press release, Verizon violated the ADA by failing to provide reasonable accommodations for people with disabilities, such as making an exception to its attendance plans for individuals whose “chargeable absences” were caused by their disabilities. Instead, the EEOC said, the company disciplined or terminated employees who needed such accommodations. In addition to requiring the payment of $20 million in monetary relief to affected employees, the Consent Decree filed with the federal district court in Maryland requires the company to revise its attendance plans, policies and ADA policy to include reasonable accommodations for persons with disabilities, including excusing certain absences.

Interestingly, the Consent Decree provides a step by step analysis that the EEOC expects Verizon (and presumably all covered employers) to go through before considering an employee’s absence to be a "chargeable absence" subject to discipline under the company’s attendance policy. Specifically, Paragraph 20.03 provides:

In determining whether a Current Associate’s absence should be "nonchargeable," Verizon is required to evaluate on an individual case-by-case basis whether each of the following is satisfied:

(a) the Current Associate has a mental or physical impairment that substantially limits one or more major life activities of such individual as defined by the ADA, and for the period on and after January 1,2009, as amended through the ADA Amendments Act of 2008;

(b) the Current Associate’s absence was caused by a disability;

(c) the Current Associate or someone else on the Current Associate’s behalf requested through the Company’s designated process a period of time off from work due to a disability;

(d) the Current Associate’s absences have not been unreasonably unpredictable, repeated, frequent or chronic;

(e) the Current Associate’s absences are not expected to be unreasonably unpredictable, repeated, frequent or chronic;

(f) Verizon was able to determine, from the request by or on behalf of the Current Associate or through the interactive reasonable accommodation process, a definite or reasonably certain period of time off that the Current Associate would need because of a disability; and

(g) the Current Associate’s need for time off from work as a reasonable accommodation does not pose a significant difficulty or expense for Verizon’ s business.

Paragraph 20.03 goes on to say that "[i]f each of the foregoing is satisfied a Current Associate’s absence shall be "nonchargeable." If (a), (b), (c), (d), (e), (f), or (g) is not satisfied, Verizon may, as Verizon deems appropriate, determine that an absence is "chargeable." In other words, using the Verizon Consent Decree as guidance, employers will have a better chance of avoiding liability for an attendance-based termination under the ADA by showing that the employee’s attendance was and is expected to be unreasonably unpredictable, repeated, frequent or chronic. A properly drafted job description, noting where appropriate the importance of predictable attendance, can be an employer’s first defense in this regard.

Believe it or not, while courts have generally adhered to the principle that some degree of regular attendance is usually an essential function in most employment settings, regular attendance is not a per se essential function of all jobs. Rather, courts consider the circumstances of each individual job at issue to decide if regular attendance is essential. Courts have been more likely to find regular predictable attendance to be an essential job function where:

1. the job requires a level of specialization or creates other circumstances where it is difficult to replace the employee,
2. the job requires performance at the place of employment,
3. the employment tasks are time sensitive,
4. the performance requires teamwork,
5. the work is critical, and failure to be present would adversely affect the entire company,
6. the number of available employees to cover absences in limited, and
7. the employer has strictly enforced its attendance policy — in other words, the employer has a history of treating attendance as an essential job function.

Certainly, a large number of employers will not be able to follow this road map and, for those, the Verizon Consent Decree gives most employers significant reason to revisit their no fault attendance and leave of absence policies. But, many employers, such as those in the health care and manufacturing industries, should be able to take advantage of the analysis contained in the Consent Decree to help uphold those policies.