Monday, April 23, 2012
This case tests the limits of an employer’s attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really is essential.
So begins the United States Court of Appeals for the Ninth Circuit in Samper v. Providence St. Vincent Medical Center.
The Samper plaintiff, a neonatal nurse in the defendant-hospital’s Neonatal Intensive Care Unit (NICU), suffered from fibromyalgia which, she claimed, limited her sleep and caused her chronic pain. The nurse asked the hospital to accommodate this disability by allowing her to miss work whenever she was having a “bad day.” After years of unacceptable absenteeism what the Court described as the hospital’s “Herculean efforts” to accommodate the plaintiff, she was terminated. She sued the hospital, claiming that it failed to provide her with a reasonable accommodation for her disability.
The hospital did not dispute that the plaintiff was disabled, that she had the requisite technical skills for the job, or that she suffered an adverse employment action. The hospital argued, however, that although the plaintiff possessed the technical qualifications of the job, she was unable to perform the essential function of showing up for work.
The burden was on the hospital to establish which functions were “essential” to the job. Arguing that the hospital did not meet its burden to show that attendance was an essential function of the job, the plaintiff cited numerous cases for the proposition that regular attendance was not required. For example, she cited to cases where “workers were basically fungible with one another, so that it did not matter who was doing the job on any particular day,” (dockworkers) as well as cases where the work could be performed remotely (medical transcriptionists).
The Court easily distinguished those cases, however, from cases like this one, where irregular attendance compromises essential functions. Indeed, the Court stated:
To imagine a NICU facility, responsible for the emergency care of infants, operating effectively in such a manner, stretches the notion of accommodation beyond any reasonable limit. An accommodation that would allow [the plaintiff] 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. Internal citations omitted.