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The Ninth Circuit Court Finds That Regular Attendance Is an Essential Job Function - Go Figure!

Volume 11, Issue 4
May 15, 2012

Monica Samper worked as a neo-natal intensive care unit (NICU) nurse providing critical care for premature infants.  Samper also suffered from fibromyalgia, which often caused her to be absent from work, and she regularly exceeded the number of allowable, unplanned absences permitted under her employer's attendance policy.  Samper's employer, Providence St. Vincent Medical Center, engaged in ongoing efforts to counsel her to improve her attendance, including work plans, periodic meetings, shift modifications and disciplinary action, all to no avail.  Despite her employer's efforts to work with her, Samper's "solution" was to be exempted from the attendance policy.  Her employer refused and Samper was later terminated when her absenteeism continued.  Samper sued her employer for a violation of the Americans with Disabilities Act (ADA), and her case eventually reached the Court of Appeals for the Ninth Circuit, which has jurisdiction over federal cases in Nevada. Although the Ninth Circuit Court has a longstanding history of being one of the most liberal - and not necessarily employer-friendly - federal appeals courts in the country, the court surprised many employers by rejecting Samper's argument that regular attendance was not an essential function of her job.  See Samper v. Providence St. Vincent Med. Ctr ., No. 10-35811 (9th Cir. Apr. 11, 2012).  Specifically, the court stated that it was only common sense that where an employer's particular job required the employee to actually be present at the workplace, irregular or erratic attendance adversely affects the ability to perform job functions.  Further, Samper's requested "accommodation" was basically her asking for permission to miss work whenever she felt she needed to and for an undetermined period of time.  As a result, the Ninth Circuit Court held that this type of accommodation was not reasonable under the ADA.  The Samper case, while certainly important as a notable employer victory, should not be interpreted as a blanket endorsement that attendance is an essential function of every job.  Rather, as the court pointed out, there were some very specific aspects of Samper's position as a NICU nurse that required her physical presence at the worksite, which were established using evidence produced by her employer.  Thus, employers seeking to establish that regular attendance is an essential function of a particular job must be ready to provide evidence concerning relevant factors such as:
  • Whether or not the job requires that the employee work as part of a team.
  • The degree to which the job requires face-to-face interaction with customers, vendors and other employees.
  • Whether or not the job requires using items and equipment that are on site.
  • Whether or not on-site presence is necessary for regular performance of the employee's specific job duties.
  • Whether or not any of the employee's specific job duties could be performed from home or some other location.
  • Whether a requested accommodation would compromise performance quality.
  • The harm understaffing can pose to the employer, its employees and its customers.
  • The number of employees who can cover for an employee at the last minute for an unexpected absence.
  • Whether a written job description lists "attendance" and "punctuality" as essential functions and/or provides that the employee must demonstrate performance by adhering to established policies and procedure.
  • The uniqueness of the job and its particular required skills and tasks.
  • Whether or not employees in the particular job are basically fungible with one another, so that it does not matter who is doing the job on any particular day.
  • The existence of an established and consistently enforced attendance policy.
  • The impact on an employer's ability to operate effectively with increased absenteeism.

The Samper case serves as a reminder that the courts are capable of appreciating the practical realities of the workplace, even when government agencies like the EEOC do not.  If you would like more information about this case, or have a disability-related attendance issue you would like to discuss, please free to contact Kamer Zucker Abbott.

Employer Report articles are for general information only; they are not intended and should not be construed to be legal advice. Reading or replying to such articles does not establish an attorney-client relationship. In addition, because the subject matters and applicable laws discussed in Employer Report articles are often in a state of change and not always applicable to every type of business entity or organization, readers should consult with counsel before making decisions based on the same.