On April 11, the Ninth Circuit Court of Appeals held that in certain circumstances attendance is an essential job function and employers need not accommodate an employee’s disability under the Americans with Disabilities Act (ADA) by providing an open-ended schedule that allows the employee to call off work whenever he or she wants. Samper v. Providence Med. Ctr. (9th Cir. 2012).
Samper, who suffered from fibromyalgia, worked at Providence St. Vincent Medical Center (Providence) in Portland, Oregon as a neonatal intensive care unit nurse. It was not disputed that Samper qualified as having a disability under the ADA. Providence successfully argued, however, that it could not accommodate Samper’s excessive absences without compromising patient care and safety.
Critical to the court’s determination was the fact that Providence had previously worked through the interactive process with Samper and had provided her with a very flexible schedule that allowed her to call in whenever she was having a bad day and to move her shift to another day during the week. Still, Samper’s attendance did not improve. The court noted that an NICU nurse’s job united the “trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, face-to-face interaction with patients and their families, and working with medical equipment.” Finally, the court noted that NICU nurses require special training and are not “basically fungible” employees.
Contact an MSEC attorney for assistance if faced with such a situation in your workplace. You will need to assess if an employee’s presence on-site is truly an essential job function. This will not be true for all jobs. It will also be important to determine if the position is one that anyone can fill.