In a case that “tests the limits of an employer’s attendance policy,” a federal appellate court recently upheld the dismissal of a lawsuit brought by a nurse who requested a waiver from her employer’s five-unplanned-absence limit. According to the Ninth Circuit Court of Appeals, given the importance of regular attendance by a worker in the employee’s position, the employer established that compliance with its attendance policy was an essential job function, and that employers need not grant accommodations that would exempt an employee from that essential job function. “Because regular attendance is an essential function of a neo-natal nursing position,” the court affirmed judgment against the employee. Samper v. Providence St. Vincent Medical Center, No. 10-35811, Ninth Circuit Court of Appeals (April 11, 2012).

Factual Background

Monika Samper was a neo-natal intensive care unit (NICU) nurse at Providence St. Vincent Medical Center in Portland, Oregon. Under Providence’s attendance policy, employees are permitted to take up to five unplanned absences during a rolling 12-month period.

Samper regularly exceeded the number of unplanned absences permitted under the policy. Between 2000 and 2005, Samper was informed that she needed to improve her attendance and received two negative reviews as a result of her attendance problems. In 2005, when she was diagnosed with fibromyalgia, Providence agreed to allow Samper to call in when she was having a bad day and move her shift to another day in the week. When Samper’s attendance problems continued, she requested an exemption from the attendance policy.

In 2008, hospital management informed Samper that her position would cease to exist and that she could transfer to another position or face termination. Her attendance problems continued and she was eventually fired. Samper filed suit alleging, among other claims, a violation of the Americans with Disabilities Act (ADA) due to failure to accommodate. The trial judge granted summary judgment in favor of Providence. Samper appealed this decision to the Ninth Circuit Court of Appeals.

Legal Analysis

The Ninth Circuit first noted that the “case turns on the role that regular attendance plays in the functions of a NICU nurse.” Samper argued that regular attendance is not an essential function of the NICU nurse position. According to the Ninth Circuit, a majority of circuits have held that in jobs where performance requires regular attendance at the job site, irregular attendance compromises essential job functions. “The common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse,” the court held.

According to the court, the NICU nurse position combines “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.” The at-risk patient population, the court concluded, requires “constant vigilance, team coordination and continuity” such that being understaffed is “highly undesirable and, potentially, can compromise patient care.”

The Ninth Circuit also considered Providence’s evidence on the issue. For example, Providence’s written job description required strict adherence to the attendance policy. And, according to Providence’s charge nurse, absences among NICU staff can jeopardize patient care. Further, because NICU nurses require special training, the number of nurses who can be called in on short notice is limited. Finally, the court noted that Providence already had made “Herculean efforts” to accommodate Samper.

The Ninth Circuit concluded that “[a] n accommodation that would allow Samper to ‘simply . . . miss work whenever she felt she needed to and apparently for so long as she felt she needed to [a]s a matter of law . . . [is] not reasonable’ on its face.” Thus, the Ninth Circuit affirmed the trial judge’s decision in Providence’s favor.

Practical Impact

According to Mark Kisicki, a shareholder in Ogletree Deakins’ Phoenix office: “This is a significant change for employers with operations in the Ninth Circuit. Prior Ninth Circuit decisions had conflated the ADA analysis in cases involving attendance, skipping the first step of determining whether regular attendance was essential and proceeding directly to an analysis of whether allowing an employee to miss work intermittently was an undue burden. This case emphasizes that ‘common sense’ dictates that it is the exception, not the norm, that regular attendance is not an essential function of most jobs. As the court noted, employers still have the burden of proving that attendance is an essential function; so employers would be well-advised to review their job descriptions, attendance policies and practices to ensure that they can demonstrate any particular job falls within the norm and not the exception.”

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