An employer’s past leniency in applying and enforcing its attendance policy did not contradict the employer’s later position that regular worksite attendance was required for employment, the U.S. Court of Appeals for the Fifth Circuit has held. Weber v. BNSF Railway Co., No. 20-10295 (5^th Cir. Feb. 24, 2021).

This provides guidance for employers unsure whether accommodating an employee’s absences creates a “precedent” making it harder in the future to establish that regular attendance is an essential job function. The Fifth Circuit has jurisdiction over Louisiana, Mississippi, and Texas.

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