Enough is Enough: Regular Attendance is an Essential Function of a Job under the ADA

Originally appeared in Labor Law Newsletter - January 2002

The United States Court of Appeals for the Seventh Circuit recently held that an employee’s request for unlimited sick days was not a reasonable accommodation under the Americans With Disabilities Act ("ADA"). EEOC v. Yellow Freight Systems, Inc., 253 F.3d 943 (7th Cir. 2001), involved a trucking company dockworker who suffered from AIDS and Kaposi’s sacoma, a cancer related to AIDS. The plaintiff had a history of poor attendance and was ultimately terminated for excessive absenteeism. Specifically, in 1991 he left early twice and called in sick 37 times; in 1992 he left work early once and took 15 days off; in 1993 he left early 4 times and was out 126 days; in 1994 he left work early 3 times and took 47 days off; and in 1995 he left work early 3 times and called in sick 50 times.