A policy allowing an individual to work from home does not vitiate the fact that punctuality and predictable attendance are essential functions of a position. According to the 7th U.S. Circuit Court of Appeals, an employee’s ongoing tardiness – although numerous modifications had been made to her schedule and workload to allow flexibility in light of the individual’s multiple sclerosis (MS) – supported the employer’s argument that the employee was not “qualified” for the job, and led to summary judgment in the employer’s favor. Taylor-Novotny v. Health Alliance Medical Plans, Inc. 7th Cir., No. 13-3652, November 26, 2014.

Kiersten Taylor-Novotny, an African-American woman, began working for Health Alliance Medical Plans in November 2005 in the salaried position of Contract Specialist I. In that role, Novotny’s responsibilities included “document preparation, negotiating and reviewing contract terms with medical providers, planning proactively for contract renewals, and documenting activities related to medical provider contracts in a contracting management system.”

Taylor-Novotny had punctuality and attendance problems almost immediately and was rated as a “marginal” employee in that category during her first performance evaluation in January 2007. Subsequently, Novotny’s schedule was adjusted to allow her to report to work later, but her tardiness and absenteeism continued.

In April 2007, Novotny was diagnosed with MS. Although her start time again was adjusted to a later time, Novotny continued to be late for work. In October 2007, she was put on a corrective action plan.

In May 2008, Novotny’s doctor suggested that Novotny should work from home two days a week. At that point, and again for an additional FMLA leave in 2009, Health Alliance approved FMLA “intermittent time off as needed to manage [Novotny’s] condition as specified by [her] physician.” The company noted, however, that it remained Novotny’s “responsibility to let [her] manager know each time an absence from work will be necessary, as well as whether or not [her] absence should be charged to this approved Family Leave.”

In March and April 2010, Novotny’s neurologist provided doctor notes that limited Novotny to two, one-half days per week in the office. Although the company informed Novotny that she would have to use FMLA leave for the non-worked half days, she refused to do so.

Health Alliance also attempted to further accommodate Novotny’s MS by implementing several changes in Novotny’s physical work arrangement. For example, another employee was allowed to retrieve documents from the printer and deliver mail for Novotny. Also, the number of files and other items that Novotny needed to carry between her home and the office was reduced.

Novotny also requested that she be allowed to use her badge scans to document her arrival times, instead of being required to inform her supervisor directly when she was late and the reason for her tardiness. Because the badge scans only recorded only arrival time, but did not provide advance notice of or a reason for, the late arrival (as required of Novotny by the company), Health Alliance refused this request.

On May 21, 2010, Health Alliance issued a Final Written Warning to Novotny for arriving late eight times between April 13 and May 7 without notifying her supervisor about her tardiness, as required. In response, Novotny filed a grievance, stating that her job could ““clearly be done from home full time.”

Novotny’s employment was terminated on July 30, 2010. In its termination letter, Health Alliance informed her that it was removing her because of her “continued tardiness and failure to report accurately her work time.”

Novotny filed a five-count federal court complaint in which she alleged that Health Alliance had failed to reasonably accommodate her MS and had retaliated against her for seeking accommodation, in violation of the ADA; that it had terminated her employment on the basis of her race and disability, in violation of Title VII and the ADA; and that it had interfered with her rights under the FMLA. The district court granted summary judgment on all of Novotny’s claims, and she appealed to the Seventh Circuit, which ultimately upheld the dismissal of her claims.

On the FMLA claim, the Seventh Circuit upheld the dismissal, noting that Novotny’s admission that she never had been denied the opportunity to take FMLA leave was fatal to her FMLA interference claim.

To prevail on any of her ADA claims—disparate treatment, failure-to-accommodate, and retaliation—Novotny had to establish that “she was a qualified individual who, with or without reasonable accommodation, could perform the essential functions of the employment position.” The Seventh Circuit agreed with the lower court that Novotny could not do so.

The critical issue is that while the parties did not dispute that Novotny’s MS is a “disability” within the meaning of the ADA, they disagreed on whether Novotny is a “qualified individual” with a disability—“an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position.”

Novotny argued that Health Alliance’s work-from-home policy, which allowed for flexible arrangements, meant that Health Alliance did not consider attendance to be an essential function of her job.

The Court disagreed, pointing out that the ADA provides that “consideration shall be given to the employer’s judgment as to what functions of a job are essential.” It also held that an employer may treat regular attendance as an essential job requirement and need not accommodate “erratic or unreliable attendance.”

The Court then held that because Novotny’s impairment prevented her from coming to work regularly, she was unable to perform the essential functions of her job, and therefore was not a “qualified individual” for ADA purposes.

Further, even had Novotny been “qualified” under the ADA, she would not have shown that she was meeting Health Alliance’s legitimate expectations related to her job – another element of her case. Novotny’s failures both to arrive at work on time and to alert her supervisor before those late arrivals were noted on every performance evaluation received by Novotny during her employment, and doomed her ability to show she was performing up to the company’s expectations.

Although the Court found that Novotny’s case failed because she could not support her prima facie case, it went on to provide a detailed and well-reasoned analysis of each of her claims, explaining how Novotny also was unable to carry her burden to prove the elements of the claims.

While the holding in this case was supportive of the employer’s work-from-home policy, the company’s success on the issue hinged largely on the fact that the policy included provisions for how and when the employee was to inform her supervisor of the time and reason for her absence. Absent those detailed instructions, the case may have been decided differently.