“We have ‘consistently stated that regular and reliable job attendance is a necessary element of most jobs,’” said the Eighth Circuit, finding that to be the case here as well.
Job attendance, declared the Eighth Circuit, is an essential job function of a Union Pacific locomotive engineer, and thus a locomotive engineer’s newly requested accommodation for his chronic back pain of “laying off as necessary” and receiving 24 hours of rest between shifts was unreasonable as it essentially amounted to an unlimited absentee policy. Nor did the fact that Union Pacific had previously allowed him to miss a large percentage of his shifts create a material fact question regarding the reasonableness of his requested accommodation, said the court, affirming summary judgment against his ADA failure-to-accommodate claim (Higgins v. Union Pacific Railroad Co., July 24, 2019, Melloy, M.).
Settlement agreement. As a locomotive engineer with Union Pacific since 1976, the employee’s job responsibilities included regulating the train speed and ensuring compliance with safety protocols. Two job-related spine injuries between 1989 and 1992 resulted in a 1992 settlement agreement with the railroad in which he released his personal injury claims in exchange for payment and “the right to lay off” whenever his back bothered him.
Restrictions. In March 1992, his doctor cleared him to return to work “with the only restriction being that he should not go out more often than every 24 hours.” In June, the railroad’s assistant medical director told Union Pacific’s superintendent that “[t]he medical director’s office supports the restriction that on occasion [the employee] should not go out on a job assignment more than once every 24 hours.” The superintendent then informed the employee that “I have no problem with you laying off when medically necessary[,] . . . lost work periods will be monitored for frequency and timing, and in no way exempt you from discipline if abused.”
In 1999, the employee’s doctor confirmed that the work restrictions were still necessary, and Union Pacific agreed that the employee would continue “not [to] be disciplined as the result of being absent from service.”
New manager sees attendance issues. When a new training and attendance manager began focusing on improving job attendance in 2004, she discovered that the employee had a high number of lay offs. That year, his attendance was “very borderline;” in 2005, he was ranked last in attendance among his pool turn; and in 2007, he was listed on five different monthly attendance reports. In both 2012 and 2013, he laid off 24 percent of the shifts he was called to work.
Hold them accountable. The railroad began experiencing a manpower shortage in 2013-14, and the manager was directed to “start holding people accountable for attendance.” Accordingly, she began sending out performance letters, including one to the employee in 2013. Nonetheless, he continued to lay off shifts due to his back pain. In April 2014, the employee and five other workers in his service unit received an Attendance Alert and Advisory letter. Between May 11 and August 9, he missed 26 percent of his scheduled shifts.
FFD evaluation. The employee was then directed to attend a hearing and present documentation supporting his need for the lay offs. He filed an occupational injury report prior to the hearing stating he had experienced an anxiety attack caused by “stress [and] depression due to harassment,” prompting Union Pacific to request that he undergo a fitness-for-duty (FFD) evaluation.
“Occasionally?” As part of the evaluation, his doctor was asked about the employee’s physical limitations. He responded that he considered his back condition to be unchanged and recommended that Union Pacific “[c]ontinue providing at least 24 hours off between shifts or trips” and “[c]ontinue allowing him to layoff as needed secondary to his back pain as per the agreement from 1999.” Upon seeing his doctor’s recommendations, the employee told him he “inadvertently” left out the word “occasionally” in his discussion of the 24 hours off between shifts or trips, but he never requested that his doctor correct the error or follow up with Union Pacific.
Can’t return. In November, the railroad’s medical department found the employee needed several permanent job restrictions, including “24 hours of rest per shift (between shifts).” Although the employee confirmed that the restrictions were appropriate, he requested that they be updated to also “continu[e] allowing him to lay off as needed secondary to his back pain as per agreement from 1999.” His requested change was never made.
Upon finding that 24 hours of rest between every shift, rather than occasional shifts, was not feasible because nearly 90 percent of his calls required him to work on less than 24 hours’ rest, and that there was no reasonable accommodation, the railroad told him he could not safely return to work in his position.
Job attendance. Although the employee argued on appeal that attendance was not an essential function of his job, as the district court had found, the Eighth Circuit disagreed. Not only did Union Pacific’s locomotive engineer job description list attendance in accordance with the railroad’s attendance policy as an essential job function, its attendance policy requires that employees be “available to work [their] assignment whenever it is scheduled to work.” The fact that the attendance policy allows for “personal lay-offs” under certain circumstances, said the court, did not create a material fact question regarding whether job attendance was an essential function.
Further, the railroad’s repeated warnings to the employee that his poor attendance was unacceptable also indicated that it considered attendance to be an essential job function. That it previously accommodated his back pain by allowing him to miss a large percentage of his shifts also did not create a material fact question on this issue.
As to the employee’s contention that the settlement agreement superseded the attendance policy as it applied to him, the agreement, the court wrote, “is best characterized as an agreement to accommodate Higgins’s chronic back pain rather than an admission that job attendance is not an essential function.”
Reasonable accommodation. And while the employee claimed he could perform the essential function of job attendance with an accommodation, his newly requested accommodation—laying off as necessary” and receiving “24 hours of rest per shift (between shifts)”—was unreasonable, said the court. Not only would it require Union Pacific to reassign other locomotive engineers to shifts they would not have otherwise been scheduled to work, more importantly, it “essentially amounts to an ‘unlimited absentee policy,’ which is unreasonable as a matter of law.”
That Union Pacific previously accommodated his back pain by allowing him to miss a large percentage of his shifts did not create a material fact question regarding the reasonableness of his newly requested accommodation to lay off as necessary and receive 24 hours off between every shift, the court concluded.
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