In a significant victory for employers, the Ninth Circuit Court of Appeals has reaffirmed that actually showing up for work on a predictable basis continues to be an essential function of most jobs.  The Court's opinion stands in stark contrast to recent guidance from the Equal Employment Opportunity Commission ("EEOC"), which sought to limit the ability of employers to terminate disabled employees for violations of attendance policies.

The decision, Samper v. Providence St. Vincent Medical Center, dealt with a claim by a neonatal intensive care ("NICU") nurse, Monika Samper, who alleged that her employer failed to accommodate her disability in violation of the Americans with Disabilities Act ("ADA") by refusing to exempt her from the hospital's exceedingly generous attendance policy. 

Under the policy, employees were permitted to take up to five unplanned absences during a rolling twelve-month period.  The five unplanned absences could be of unlimited duration, such that a nurse who missed several weeks of work for a single illness would be charged with only one absence.  In addition, employees were permitted time off for such things as planned medical leaves, bereavement leaves, and jury duty, which were not counted toward the number of unplanned absences. 

Samper, who suffers from fibromyalgia, had a long history of exceeding the number of unplanned absences permitted under the hospital's policy.  The hospital attempted to accommodate her disability by affording her a modified work schedule and relaxed call-out policy, but Samper's attendance problems continued.  After she received several disciplinary warnings related to excessive absenteeism, Samper requested that the hospital accommodate her disability by exempting her from the attendance policy entirely and allowing her to take "an unspecified number of unplanned absences from her job."  The hospital declined the requested accommodation, and Samper's excessive and unpredictable absenteeism continued until she was ultimately discharged in 2008 for poor attendance. 

Samper filed suit under the ADA and argued that her termination was wrongful because reliable attendance was not an essential function of her job and accommodating her request would not have posed an undue hardship for the hospital.  Samper's reasoning was twofold.  First, she argued that because the hospital had tolerated her poor attendance for several years, showing up for work regularly and reliably could not be deemed an essential function of her position.  Second, she argued that since hospital policy permitted all the NICU nurses to have up to five unplanned absences per year, her own additional absences were a mere "drop in the bucket" and did not significantly impact patient care.  The district court rejected Samper's arguments and entered summary judgment in favor of the employer.

The Ninth Circuit affirmed, and it concluded that Samper's requested accommodation "so far exceeds the realm of reasonableness that her argument leads to a breakdown in ADA analysis" and "essentially asks for a reasonable accommodation that exempts her from [the] essential function" of regular, reliable attendance. 

The Court's opinion conflicts with the EEOC's recent interpretations of ADA law.  By ignoring the commonsense fact that predictable attendance is an essential function of most jobs, the EEOC often permits plaintiffs to skip the initial burden of proving that they are otherwise qualified, and instead requires that employers first show that excusing a disabled employee's unreliable attendance would pose an undue hardship.

As the Ninth Circuit reiterated in Samper, "an employee who does not come to work cannot perform any of his job functions, essential or otherwise."  Going further, the Court concluded that a requested accommodation that would allow an employee "to simply miss work whenever she felt she needed to" was not reasonable on its face as a matter of law and would "ignore[] recognition of employer needs and ... gut reasonable attendance policies."

Practice Tips for Avoiding Disability Claims Related to Attendance

There are many steps employers can take to limit potential exposure to disability discrimination claims related to enforcement of attendance policies:

  • Include "regular and reliable attendance at work" as one of the essential functions in employee job descriptions.
  • Establish reasonable written attendance policies, so that employees have a clear idea of your expectations with regard to tardiness and absenteeism.
  • Enforce attendance policies uniformly and fairly, but flexibly.
  • Document every instance where an employee is counseled about his or her attendance, including "verbal" warnings.
  • Ask employees to submit any request for accommodation in writing, so that there is a clear record of what was, and was not, disclosed and/or requested.
  • Request medical certification from the employee's healthcare provider, including information about the employee's specific limitations, any recommended accommodations, and the expected duration of the condition.
  • Consider a requested accommodation carefully, discuss it with the employee, and be prepared to consider alternate accommodations. 
  • Be cognizant of the fact that a requested accommodation related to an attendance policy may trigger obligations under other laws, such as the Family and Medical Leave Act.