Last week Verizon agreed to pay $20 million to settle a lawsuit in which the EEOC alleged that Verizon violated the ADA by denying reasonable accommodations to hundreds of employees and disciplined and/or fired them pursuant to “no fault” attendance plans.  The EEOC’s position is that the ADA requires an employer to provide paid or unpaid leave to an employee with a disability as a reasonable accommodation, unless doing so “would cause significant difficulty or expense for the employer.”

Also last week, the Court of Appeals for the First Circuit issued a decision in which the Court stated,

In Rios-Jimenez, we held that, “[a]t the risk of stating the obvious, attendance is an essential function of any job.” Id. at 42; see also Waggoner v. Olin Corp., 169 F.3d 481, 485 (7th Cir. 1999) (“[A]n employee who does not come to work cannot perform the essential functions of his job.”) (quoting Nowak v. St. Rita High Sch., 142 F.3d 999, 1003 (7th Cir. 1998)) (internal quotation marks omitted). This is a true statement of law.

Valle-Arce v. Puerto Rico Ports Authority, No. 10-1102, slip op. at 18 (1st Cir. July 8, 2011).  The Court, however, overturned judgment as a matter of law for the employer, in part because the district court had failed to consider evidence that a flexible work schedule the employee had requested as an accommodation would have enabled her to fulfill the essential function of attendance. Id.

So what is going on here?  If the First Circuit and other courts of appeals consider being at work an essential function of any job, then why did Verizon settle?  If being at work is an essential function of a job, and an employee with a disability cannot perform that function, then they are not a qualified individual covered by the ADA.  The only guess I have is that the cost of litigating the case, including the cost to prepare a summary judgment motion, was more than the cost of the settlement.

In any event, the Verizon settlement is another in a series of EEOC settlements that have arisen over the issue of leave as a reasonable accommodation.  In fact, the EEOC recently held a hearing on the issue.  This is an issue that has increasing ramifications for all employers covered by the ADA and similar state disability discrimination laws, including employers who may not be covered by the FMLA.  Over the next couple of days, I am going to spend some time looking at the issue in more depth and posting about it here.