Most of us assume that showing up for work is an essential part of our job. Most employers have attendance policies in place that require employees attendance at the work location. However, courts have found that regular attendance is not necessarily an essential function for all jobs. In a recent case, an employee with a disability asked her employer to exempt her from the Hospital attendance policy as a reasonable accommodation. In this case, the request went too far for the U.S. Ninth Circuit Court of Appeals.
In Samper v. Providence St. Vincent Medical Center, Monika Samper was a part-time nurse in a hospital’s neo-natal intensive care unit (NICU). NICU nurses provide a high level of hands-on, intensive care to premature infants. Special training is required for this job. The Hospital’s attendance policy allowed employees to take up to five unplanned absences during a 12-month period. Samper had attendance problems for several years.
In 2005, Samper was diagnosed with fibromyalgia and her attendance problems grew worse. The Hospital engaged in the interactive process with Samper and agreed to a highly flexible accommodation: Samper was allowed to call in when having a bad health day, and to move her shift to another day in the week without finding someone to cover her shift. However, her attendance problems persisted. As another form of reasonable accommodation, the Hospital then agreed not to schedule Samper’s two shifts per week on consecutive days. Remarkably, Samper’s attendance still did not improve. Samper ended up requesting an exemption from the attendance policy altogether. The Hospital refused this accommodation request and eventually terminated her employment.
Samper sued the Hospital in Federal court for allegedly failing to reasonably accommodate her in violation of the Americans with Disabilities Act (ADA). To be successful in bringing a claim for failure to accommodate a disability, Samper would have had to show, among other things, that she was a qualified individual who was able to perform the essential functions of the job with or without reasonable accommodation.
Perhaps surprisingly, attendance is not always going to be deemed an essential job function. The Court draws a distinction between jobs that require attendance at the jobsite and jobs that do not require on-site attendance. On-site attendance can be an essential job function if: (1) the employee must work as part of a team; (2) the job requires face-to-face interaction with clients and other employees; or (3) the job requires the employee to work with items and equipment kept on the work site.
Here, the Ninth Circuit found that Samper’s request for an exemption from the attendance policy far exceeded the realm of reasonableness. The Court reasoned that a NICU nurse’s attendance is an essential job function for all three reasons: Samper’s job required teamwork with other NICU nurses, interaction with co-workers and patients, and access to medical equipment. Moreover, the job description for the position emphasized the need for regular attendance and punctuality, especially given the challenge of finding replacements for these specialized nurse positions. The Court held that Samper’s request to be absent as much as she wanted to was not a reasonable accommodation that would allow her to perform her essential job functions, but rather it would exempt her from the essential job function of regular attendance.
This case gives public employers guidance regarding when attendance can be considered an essential job function. Specifically, attendance is an essential job function when one or more of the three factors listed above is present. Consequently, even if an employee’s disability is the cause of absences, an employer does not have to exempt an employee from an attendance policy if the essential job duties necessitate that the employee regularly report to a workplace. Employers should consider the three factors to determine whether attendance is indeed an essential function of a job and then update job descriptions to reflect this.