The Americans with Disabilities Act (ADA) prohibits discrimination against individuals who are qualified to perform the essential functions of their jobs with a reasonable accommodation. Where a disability causes frequent unscheduled absences from work, the question arises whether the employer must accept the absences as a reasonable accommodation, or whether the employee is no longer qualified to perform the essential functions of his or her job.

NICU Nurse Exceeds Number of Permitted Unscheduled Absences

This was the question addressed by the Ninth Circuit Court of Appeals in Samper v. Providence St. Vincent Medical Center. Plaintiff Monika Samper worked part-time in the neo-natal intensive care unit (NICU) at Providence St. Vincent Medical Center in Oregon. Providence St. Vincent had an attendance policy that limited unplanned absences; employees who exceeded the maximum number of such absences could face discipline.

Throughout her eleven-year career at Providence St. Vincent, which began in the late 1990s, Samper often exceeded the policy limit for unplanned absences. These absences were noted in Samper's performance evaluations, and Samper was told that she needed to improve her attendance.

Hospital Relaxes Attendance Policy as Accommodation for Disability

Sometime in 2005, Samper was diagnosed with fibromyalgia, a condition that limits sleep and causes chronic pain. Providence St. Vincent sought to manage and accommodate Samper's absences. Thus, Samper was allowed to call in when she was having a bad day, and Providence St. Vincent would move her shift to another day in the week. Providence St. Vincent also agreed not to schedule Samper's shifts on consecutive days. These accommodations were in addition to various leaves accorded to Samper, none of which counted towards the attendance policy limit on unplanned absences.

Samper continued to violate the attendance policy, and in 2006 she received a verbal warning. In response, Samper asked to be exempt altogether from the policy, something the hospital declined to do.

Hospital Terminates Nurse's Employment and Nurse Claims Violation of ADA; District Court Finds Nurse Unqualified Because Attendance Was Essential Job Function

Finally, in 2008, Providence St. Vincent told Samper that it was eliminating her part-time position, and that if she did not transfer to another position, her employment would be terminated. Samper reacted by making inappropriate comments in the workplace. In very short order, and after further disciplinary notices for additional unplanned absences, the hospital discharged Samper, who filed a lawsuit alleging, among other things, that Providence St. Vincent had failed to accommodate her disability in violation of the ADA.

The district court granted summary judgment in favor of Providence St. Vincent. The court ruled that, as a matter of law, Samper was unqualified for her position in the NICU because she could not conform to the hospital's attendance policy. It also ruled that the 2006 work plan was a reasonable accommodation of her disability, and that Samper's request to be exempted from the attendance policy was unreasonable.

Ninth Circuit Affirms: Employer Met Burden of Production on Question Whether Attendance Was Essential Job Function and Employee's Requested Accommodation Was Unreasonable

The Ninth Circuit Court of Appeals affirmed the decision of the district court. Providence St. Vincent conceded that Samper could establish two of the three necessary elements of a claim of failure to accommodate: Samper was disabled within the meaning of the ADA, and she had suffered an adverse employment action. Therefore, the only issue before the court was whether Samper was a qualified individual who was able to perform the essential functions of her job with a reasonable accommodation.

The answer to that question turned on whether attendance was an essential function of Samper's job as a nurse in the NICU. The court pointed to decisions in other circuits finding that irregular attendance compromised job function where performance of the job requires that an employee be on site. For example, attendance could be an essential job function because the necessary tools and equipment were at the employer's place of business, work was performed by teams of employees or, in the case of school teachers, that was where the students were.

The court of appeals concluded that "[t]he 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." In reaching this conclusion, the court found that Providence St. Vincent met its burden of production on the question whether attendance was an essential job function. Specifically, Providence St. Vincent offered the job description for NICU nurses, which required strict adherence to the attendance policy, and which also listed "attendance" and "punctuality" as essential functions of the job. Providence St. Vincent also submitted a declaration from Samper's former supervisor, which detailed the difficulty finding replacements when NICU nurses take unscheduled absences and how that can compromise patient care.

The court rejected Samper's argument that the hospital's patience with her signaled that attendance was not, in fact, an essential job duty. It also rejected her claim that the accommodation she requested, to be exempt from the attendance policy, was reasonable. The court specifically found that it was unreasonable and also observed that Samper was asking for an accommodation that exempted her from an essential job function, thereby collapsing two prongs of a prima facie case of failure to accommodate.

Conclusion

As the court of appeals noted, the employer had the burden of production on the question whether attendance was an essential job function, and each case will turn on its specific facts. Employers who believe that attendance is an essential function for a particular job or classification should make sure that attendance policies and job descriptions clearly say as such. They should also take care to establish the connection between adherence to employer attendance policies, on the one hand, and the quality of the employee's work and the effect on the employer's business, on the other. Even so, there are some potential pitfalls. Employees may be eligible for leave under the Family and Medical Leave Act (FMLA) or similar state law. In Samper's case, she did take such leave, which was not counted toward her unscheduled absences. In addition, employers should be mindful that "no call, no show" policies may run afoul of the FMLA if they result in automatic discipline. See e.g., Mora v. Chem-Tronics, Inc., 16 F.Supp.2d 1192, 1216-1217 (S.D. Cal. 1998). Finally, Providence St. Vincent demonstrated an exemplary amount of patience; employers who rush to terminate an employee with attendance problems may be deemed to violate their duty to accommodate individuals with disabilities.