The Fourth Circuit Court, located in Richmond, Virginia, with appellate jurisdiction over the district courts in the following districts: District of Maryland, Eastern District of North Carolina, Middle District of North Carolina, Western District of North Carolina, District of South Carolina, Eastern District of Virginia, Western District of Virginia, Northern District of West Virginia, and the Southern District of West Virginia, has reaffirmed its position that regular and reliable attendance is an essential function of most jobs.
The Court held that an employer did not violate the Rehabilitation Act by taking adverse action against an employee because of her attendance issues—even though they were caused by her mental illness. Hannah P. v. Coats, No. 17-1943 (4th Cir. Feb. 19, 2019).
While the disability discrimination claims in Coats arose under the Rehabilitation Act, the same analysis would apply under the Americans with Disabilities Act. The Fourth Circuit’s thorough opinion offers helpful guidance for employers attempting to balance their need for reliable attendance with their obligations under federal discrimination laws.
Hannah was hired by the Office of the Director of National Intelligence (“DNI”) for a five-year term in March 2011. Shortly after being hired, she was diagnosed with depression. Hannah immediately informed her supervisors of her diagnosis, but did not request an accommodation at that time. By March 2015, Hannah’s co-workers and supervisors observed that her attendance was becoming erratic—including days where Hannah would come to work extremely late or would be unreachable for hours.
On March 19, 2015, Hannah’s supervisors met with her to directly address her attendance issues. Together with Hannah, they developed a plan that required Hannah to arrive at work by 10 AM and to provide advance notice if she was going to be absent or late. Despite the plan, Hannah continued to arrive late or miss work without advance notice. On April 9, 2015, Hannah’s supervisors informed her that the plan was not working, and they referred her to the Employee Assistance Program (“EAP”). Despite Hannah’s participation in EAP, her attendance problems persisted. Hannah requested four weeks of medical leave based on the recommendation of her psychiatrist. Hannah’s leave request, after being withdrawn and renewed, was ultimately approved after a two-week delay.
Before taking her medical leave, Hannah applied for several permanent positions with DNI. An interview panel recommended her for one position. However, she was not selected after DNI’s Chief Management Officer recommended that she not be selected because her performance was “not consistent with a potentially good employee.” All of Hannah’s applications for a permanent position were rejected, and Hannah’s employment ended in March 2016 at the end of her five-year term.
Among other claims, Hannah asserted that DNI violated the Rehabilitation Act by (1) failing to accommodate her depression; (2) requiring her to undergo a medical examination; and (3) refusing to hire her for a permanent position.
Fourth Circuit Decision
The Fourth Circuit affirmed summary judgment for the employer on Hannah’s Rehabilitation Act claims. However, Chief Judge Gregory wrote a separate opinion in which he dissented as to Hannah’s Rehabilitation Act claims.
The Court held that DNI provided Hannah with a reasonable accommodation by working with her to develop an attendance plan. When Hannah’s attendance issues continued, Hannah’s supervisors attempted a new accommodation—referring Hannah to EAP. Hannah argued that DNI failed to accommodate her by improperly rescinding the attendance plan accommodation and unilaterally sending her to EAP counseling. The Court rejected this argument, explaining that the employer “has the ultimate discretion to choose between effective accommodations” and noting that Hannah’s supervisors only acted unilaterally when the attendance plan accommodation did not work. The Court also rejected Hannah’s argument that her request for medical leave was improperly delayed. The Court explained that the delay was less than a month, and Hannah’s supervisors were actively considering her request during that time.
The Fourth Circuit also rejected Hannah’s claim that the EAP counseling to which she was referred constituted a prohibited medical examination. As a threshold matter, the Court noted that EAP’s policies make clear that EAP is intended to be used as a voluntary counseling service, and not as a mandatory medical examination that would violate the Rehabilitation Act. Even if EAP was a mandatory medical examination under the facts of this case, the Fourth Circuit held the referral to EAP was not unlawful because it was “job-related and consistent with business necessity.”
Finally, the Fourth Circuit held that DNI did not violate the Rehabilitation Act by failing to select Hannah for a permanent position because of her attendance issues. The Court explained: “Hannah might have been exceptionally talented and substantively good at her job, but . . . in addition to possessing the skills necessary to perform the job in question, an employee must be willing and able to demonstrate these skills by coming to work on a regular basis.” The Court rejected Hannah’s argument that because her disability was the cause of her attendance issues, her employer could not deny her a job opportunity on that basis: “We have no doubt that Hannah’s struggle with depression was the cause of her attendance issues, and we are sympathetic to the toll this condition took on a highly talented employee. However, [DNI] was nevertheless permitted to take Hannah’s attendance issues into account in its decision whether to hire her” for a permanent position.
Hannah reiterates the Fourth Circuit’s position that regular, reliable attendance is an essential function of most jobs. However, the lengths to which an employer must go to provide an accommodation to an employee with disability-related attendance problems remains a fact-intensive inquiry.