Employers must balance their need to give reasonable accommodations with their need to require regular, dependable attendance. A recent Ninth Circuit case decided under the American with Disabilities Act ("ADA") lends some encouraging support for that effort.  

Case Background

In Samper v. Providence St. Vincent, Monika Samper, a neo-natal intensive care unit ("NICU") nurse with fibromyalgia (a condition that limits sleep and causes chronic pain), sought an accommodation that would have allowed her an unlimited number of unplanned absences. Samper basically requested freedom from Providence's attendance policy, which allowed five unplanned absences per rolling 12-month period. Unplanned absences for family medical leave, jury duty, bereavement leave and other approved bases were not counted, and each unplanned absence, however long, counted as only one occurrence. Even under this generous policy, Samper could not meet attendance requirements and was eventually fired. The district court granted summary judgment in favor of Providence on Samper's claim under the ADA. The Ninth Circuit affirmed in a well-reasoned opinion, concluding that regular attendance is an essential function of neo-natal nursing positions at the medical center.  

The Court's Holding

To prove a failure to accommodate under the ADA, Samper had to show that (1) she was disabled within the meaning of the ADA, (2) she was a qualified individual able to perform the essential functions of the job with reasonable accommodation, and (3) she suffered an adverse employment action because of her disability. Providence had the burden to show essential functions, because "much of the information which determines …essential functions lies uniquely with the employer." Providence met its burden by producing a detailed job description identifying attendance and punctuality as essential job functions and with a declaration from Samper's former supervisor that NICU nurses are specialized, that is hard to find replacements, and that understaffing compromises patient care. On this showing, the Ninth Circuit concluded that Samper faced "an insurmountable hurdle" in arguing that regular attendance is not an essential function of the NICU nurse position.

Samper, in the spirit of punishing a good deed, argued that Providence's generous policy of allowing unplanned absences, plus its tolerance of Samper's own past excessive absences, were proof that her regular attendance was not essential. The Ninth Circuit rejected this logic, reasoning that Providence's past patience and accommodation did not mean it had to tolerate unlimited absences going forward. In addition, Providence's "Herculean" efforts with Samper in trying alternative accommodations (such as using a part-time schedule with no days back-to-back and a history of extended leaves not counted towards the attendance policy) showed good faith participation in an interactive process with her. The Ninth Circuit observed: "Ultimately, despite Providence's patience and accommodations, 'there was literally nothing in the record to suggest that the future would look different from the past,' leaving Providence with little choice but to terminate Samper."

Samper relied on a controversial Ninth Circuit precedent, Humphrey v. Memorial Hosps. Assoc. which held that "regular and predictable attendance is not per se an essential function of all jobs." The Samper court distinguished Humphrey, which involved a mentally disabled medical transcriptionist's request to work from home: transcription can be done from home; patient care cannot. The Ninth Circuit stated: "An 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."  

What Samper Means for Employers

While the case is a positive development for employers, some notes of caution remain. First, the case was decided under the ADA, not under California's arguably stricter counterpart, the Fair Employment & Housing Act. Second, the facts were extremely favorable for the employer, as it involved a specialized nursing position where physical presence was necessary for patient care. Third, Providence was especially well prepared, establishing regular attendance as an essential job function in its written job descriptions and engaging in a robust interactive process before it administered progressive discipline to Samper. Where these critical elements are not present, the outcome may not be as favorable