Ninth Circuit Holds that Attendance Can Be an Essential Job Function


In a recent Americans with Disabilities Act (ADA) accommodation case, Samper v. Providence St. Vincent, the United States Court of Appeals for the Ninth Circuit issued a rare employer-friendly decision suggesting that attendance can be an essential function of many jobs. If an employee in such a job cannot maintain acceptable attendance, the employee becomes “unqualified” for the position. In such situations, an employee’s accommodation request to be exempted from a reasonable attendance policy may be unreasonable and need not be granted.

Samper was a nurse in Providence St. Vincent Hospital’s Neonatal Intensive Care Unit (NICU), which offers intensive care to premature infants. Providence’s attendance policy for its NICU nurses allowed five unplanned absences per year. Samper had been diagnosed with fibromyalgia and, over an eight-year period, repeatedly exceeded the unplanned absence limit; sometimes she was out for days at a time. The hospital attempted to accommodate Samper’s condition by allowing her to move shifts to other days on short notice and, later, by scheduling shifts on non-consecutive days. Despite such efforts, Samper’s unplanned absences continued to exceed the policy’s limits. The hospital finally discharged Samper for excessive unplanned absences and general problems with attendance.

Samper claimed the hospital failed to accommodate her under the ADA when it refused to grant the accommodation she requested: a waiver from the five unplanned absence limit. But the court noted there are positions for which on-site attendance is an essential function of the job, including jobs such as NICU nurses in which the employee must work as part of a team, interact face-to-face with clients and other employees, or work with on-site items and equipment. The court held that Samper’s accommodation request-to be exempted from the attendance policy-was unreasonable because attendance was an essential function of the NICU nurse position.

The Ninth Circuit’s ruling in Samper was surprising because the Ninth Circuit has previously been reluctant to find that attendance is an essential function of various jobs. The Samper decision is helpful to employers because it counterbalances a prior decision, Humphrey v. Memorial Hospitals Association, in which the Ninth Circuit noted that regular and predictable attendance is not necessarily an essential function of all jobs. The Humphrey decision and others suggested that employers are often required to waive or alter attendance or on-site work policies for individuals with disability-related absence issues. But now, the court in Samper says the facts in Humphrey are not necessarily the norm and the duties of each individual job must be examined to determine if attendance is an essential function of the particular job in question.

Is attendance an essential function of jobs in your workplace? Maybe, or maybe not. Although the Samper decision is helpful, employers should still exercise caution before denying attendance-related accommodation requests such as requests for telecommuting arrangements or altered attendance policies. And efforts to engage in the interactive process should be carefully documented. When there is no easy resolution to a particular accommodation request, employers should consult with counsel.

Should you have any questions about the application of Samper to your accommodation assessments, or any other labor or employment-related matter, please do not hesitate to contact us.

The Riddell Williams Employment Law Group helps businesses comply with labor and employment laws and resolve disputes with employees. Our practice consists of four primary areas: counseling, litigation, training, and traditional labor law.

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