Is Compliance with an Attendance Policy an Essential Function of the Job?

Attendance at work seems like an obvious requirement to keep a job, right? The unfortunate answer often given by lawyers to that question is, “it depends.” In the employee-friendly state of California, permitting telecommuting or exemptions to an attendance policy may be a reasonable accommodation if a person has a disability. However, recently, the Ninth Circuit Court of Appeals confirmed that predictable attendance can be an essential function of certain jobs; in this case, the job of a neo-natal intensive care unit (“NICU”) nurse.

In Samper v. Providence St. Vincent Medical Center (9th Cir. 10-35811 4/11/12), Monica Samper was a part-time NICU nurse who sought an accommodation from her employer which would have exempted her from Providence’s attendance policy. Providence’s attendance policy quite generously permitted five unplanned absences of an unlimited duration during a rolling twelve-month period for full-time employees (“Policy”). In addition, absences related to family medical leave, jury duty, and bereavement leave were not counted under the Policy.

Although Samper was a part-time employee, Samper regularly exceeded the number of unplanned absences for full-time employees throughout her employment. Since at least 2005, Samper’s attendance problems were due to her fibromyalgia, a condition that limits her sleep and causes her chronic pain. Due to her disability, Providence provided multiple accommodations to Samper to assist her. In 2002, Samper was placed on work plans to manage her continued absences. However, her attendance problems continued. In 2005, Providence agreed to allow Samper to call in when she was having a bad day and move her shift to another day, and she did not have to find a replacement for her missed shift. This flexibility, however, yielded no results. In 2006, Providence met with Samper again and agreed to yet another accommodation – Samper’s two shifts-per-week would not be scheduled on consecutive days. Again, Samper’s attendance did not improve and she received another verbal warning. Samper then requested a complete exemption from the Policy, which was not granted. In 2008, Providence scheduled another meeting to discuss Samper’s attendance, but Samper was … wait for it … characteristically absent. After Samper essentially broke the last straw on the camel’s back, her employment was terminated for her repeated attendance problems.

Of course, like any good terminated employee, Samper filed suit alleging, among other things, violation of the ADA due to failure to accommodate. The district court granted summary judgment in favor of Providence, reasoning that Samper was unable to adhere to Providence’s Policy, and, therefore, she was not qualified for her position. The district court also held that exempting Samper from the Policy was unreasonable. The Ninth Circuit Court of Appeals affirmed this decision stating 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.” Further, Providence provided evidence to meet its burden of proof, including demonstrating “attendance” and “punctuality” as listed “standards of performance” in the written job description, and providing a declaration from Samper’s supervisor attesting to the problems unscheduled absences cause for patient care. Thus, it was not only commons-sense, but evidence from Providence, which led the Court to hold that Samper’s regular, predictable presence to perform specialized, life-saving work in a hospital context was an essential function of her job and that Samper’s accommodation that would allow her to miss work whenever she felt she needed to, and apparently for as long as she felt she needed to, was not reasonable, and could, quite literally, be fatal.

The Ninth’s Circuit’s ruling is a nice reminder that even in our high-tech world where telecommuting is possible for many employees, for some jobs, a person’s actual presence in the workplace is essential. For example, some jobs require employees to work as part of a team, interact with customers or clients, or work with equipment on-site. However, the usual caveat exists that this is not a free pass to require strict adherence to attendance policies and terminate employees whenever there is a violation. Employers still must be aware that exemptions to attendance policies may be a reasonable accommodation required under the ADA depending on the job at hand.