Disabled Nurse Cannot Escape Employer’s Attendance Policy

A recent court ruling could make it easier for employers to insist on regular attendance, even with disabled employees. Earlier this month the U.S. Court of Appeals for the Ninth Circuit rejected a nurse’s claim that her rights under the Americans with Disabilities Act (“ADA”) were violated when her employer terminated her for poor attendance. 

In Samper v. Providence St. Vincent Medical Center¹, the Court recognized that the ADA requires employers to make “reasonable accommodations” to employees suffering from disabilities. A reasonable accommodation may include a change to an employee’s work schedule. But it does not mean, the Court held, that the employer has to scrap its attendance policy and permit the employee to come and go as she wishes.

The nurse, Monika Samper, worked in the hospital’s neo-natal intensive care unit. For many years she had suffered from fibromyalgia, which limited her sleep and caused chronic pain. Samper consistently took more unplanned absences than the hospital’s attendance policy permitted. The hospital tried to accommodate Samper by permitting her to call in on a bad day and move her shift to another day in the week. It later agreed not to schedule her shifts on consecutive days. Despite these accommodations, Samper still exceeded the attendance policy’s limit on unplanned absences. The hospital terminated her employment and Samper filed her lawsuit. 

Under the ADA, employers may not “discriminate against a qualified individual with a disability because of the disability.”² A “qualified individual” is one who is able, “with or without reasonable accommodation” to perform the job’s “essential functions.”³ The law considers the failure to make a “reasonable accommodation” for a qualified individual as a form of discrimination.⁴ 

The dispute in the Samper case was whether the nurse was a qualified individual. She argued she was, due to her skill, experience and education. The only accommodation she required was as many unplanned absences as she needed due to her disability. Samper maintained this was a reasonable request. After all, the hospital already allowed each employee five unplanned absences -- plus time off for jury duty, family medical leave and bereavement leave – and it still managed to function. In her opinion, this showed that the hospital should be able to accommodate her request without undue hardship. 

The employer argued that regular attendance was an essential function for a neo-natal nurse. In support of its argument, the hospital pointed to the nurse’s written job description; strict adherence to the attendance policy was listed as a job requirement. The hospital also introduced evidence that understaffing the neo-natal unit would compromise patient care and that it was very difficult to find replacements for the highly-trained neo-natal nurses. 

The court was swayed by the hospital’s argument.⁵ It found Samper’s “regular, predictable presence to perform specialized, life-saving work in a hospital” was an “essential” part of her job. Asking the hospital to waive that essential job requirement was not reasonable: “An employer need not provide accommodations that compromise performance quality – to require a hospital to do so could, quite literally, be fatal.” 

The court’s opinion could be useful for hospitals and other employers who operate under critical performance standards – if they take the following steps:

• Update job descriptions: If regular attendance at work is necessary, employers should say so in written job descriptions. Employers should periodically check all job descriptions to ensure they still reflect the essential functions.
• Engage in efforts to accommodate employees’ disabilities: The hospital in Samper tried hard to accommodate the nurse’s disability. This is required by the law, it is the right thing to do, and it favorably impresses a court.
• Tailor the attendance policy to the business: Although the Court upheld the hospital’s attendance policy, that same policy would not necessarily be upheld if adopted by a different type of employer. Not every job depends on an employee working at the office.

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_{1 Samper v. Providence St. Vincent Medical Center, No. 10-35811 (9th Cir. April 11, 2012).   
2 42 U.S.C. § 12112(a). 
3 42 U.S.C. § 12111(8). 
4 42 U.S.C. § 12112(b)(5)(A). 
5 See 16 C.F.R. § 1630.2(n)(3)(outlining methods for proving a job function is essential).}