When is attendance an essential job function?

Attendance, FMLA and the ADA. The combination can be a toxic brew for employers. When does intermittent absence render an employee unqualified? The Fifth Circuit's opinion in Carmona v. Southwest Airlines Company provides an interesting answer. More after the jump.

The plaintiff, was granted intermittent FMLA leave for 7 years. He missed several days a month due to a disability. His FMLA leave was not renewed because he had not worked enough hours to qualify. The company attendance policy was based on a point system which did not count FMLA leave. The employee "pointed out" and was terminated because he could not fulfill the attendance requirements. The plaintiff won a jury verdict on his ADA claim which was vacated by the trial court. The Fifth Circuit (Garwood, Owens, Southwick) reverses. The opinion makes it clear that an employer's FMLA accommodation may carry over to ADA issues and affect whether attendance is an essential function of every job, which had appeared to be the law in this circuit.  Money quote:

Therefore, while a regular attendance schedule was not an essential requirement of Carmona’s position, Southwest could have argued that attendance on scheduled days was required. But under the facts of this case, Southwest could not have prevailed on this argument, either, because there was sufficient evidence that its own actions reflected that attendance on scheduled days was not required. Southwest approved Carmona’s intermittent FMLA leave,  which permitted Carmona to miss over half of each working month without notice. Southwest’s attendance policy then prevented these absences from being counted against him.  If Southwest had denied Carmona’s request for intermittent FMLA leave, it might have had a strong argument that as a matter of law Carmona was not qualified to work as a flight attendant. However, under the facts of this case, it could reasonably be found that Southwest essentially conceded that Carmona was qualified by granting him intermittent FMLA leave and then tolerating his FMLA-approved absences for seven years.  Furthermore, Southwest did not assert at trial that it had terminated Carmona because his disability prevented him from showing up to work consistently on his scheduled days.  And it does not do so now.  Instead, Southwest argues that it terminated him because it believed that he had violated its attendance policy.