Audrey E. Smith


In nearly all cases, long-term chronic illnesses satisfy the ADA's broad definition of disability. However, when these illnesses begin to cause absenteeism, the "presence is an essential function" rule effectively denies protection to the victims of these illnesses, as they are no longer "qualified individuals" under the ADA regardless of whether they satisfy the technical requirements for a position. The idea that "presence is an essential function" is a myth because (1) it erroneously assumes that most jobs can be performed only at the worksite, and (2) virtually all employers are able to, and do, accommodate some degree of employee absenteeism. Thus, this Comment argues that the "presence is an essential function" rule is unsound. The courts should discard this rule and, instead, ask the question that is mandated by the ADA: Can the chronically ill employee be accommodated? This approach is appropriate for four reasons: First, the unnecessarily broad and sweeping language that "presence is an essential function" is both unnecessary and misleading. Second, the ADA and its interpretive regulations mandate fact-intensive, casespecific inquiries in order to satisfy the ADA's goal of making employment opportunities available to the maximum number of disabled individuals. Third, it is the disabled individual, not his or her absenteeism, that must be accommodated. Finally, numerous reasonable accommodations exist for individuals with disability-related absenteeism. Part II of this Comment will describe the legislative history and provisions of Title I of the ADA. It will also trace the evolution of the "qualified individual" and the duty to accommodate, as well as the emergence of the "presence is an essential function" myth. Part III will describe how the courts' invention and continued application of the "presence is an essential function" myth is contrary to the purposes of the ADA. Finally, Part IV will offer an appropriate approach to analyzing cases involving disability-related absenteeism.