Train dispatcher's failure-to-accommodate claim derailed by excessive absenteeism

Courts have consistently found regular employee attendance can be an essential function for certain positions that employers don't have to eliminate in the name of providing an accommodation under the Americans with Disabilities Act (Act). In other words, ignoring absences when regular attendance is an essential function wouldn't be a reasonable accommodation. The 5th Circuit recently came to the same conclusion but also found the need for frequent, irregular absences without notice can prevent employees from being qualified individuals with a disability entitled to an accommodation in the first place. Let's take a closer look.

Facts

BNSF Railway Company employs dispatchers, who are responsible for guiding the safe and efficient movement of trains through an assigned district. Given the nature of the responsibilities, the position is deemed a safety-sensitive job by the company.

BNSF maintains written employee attendance guidelines, which prohibit excessive absenteeism. The guidelines define "excessive absenteeism" to include "when an individual's incidents of absenteeism disrupt the regular working schedule of dispatchers." They also define an "incident of absenteeism" to include any absence from work such as being off without justifiable reason, a pattern of absences, sporadic absences, tardiness, or leaving work early.

Jay Weber worked as a train dispatcher from 1989 until his termination in 2016. In 2009, he was diagnosed with a brain tumor. In April 2015, he had a seizure, was diagnosed with epilepsy, and entered an epilepsy monitoring facility for in-patient care.