Regular Employee Attendance is an Essential Job Element
According to a recent Ninth Circuit opinion, it is not a violation of the Americans with Disabilities Act (ADA) to fire an employee who repeatedly fails to show up for work. It’s amazing that such a question would even have to be decided by a Federal Court of Appeals.
In Samper v. Providence St. Vincent Medical Center, Plaintiff was a neo-natal intensive care unit (NICU) nurse who suffered from fibromyalgia. Providence Hospital had a very generous attendance policy that allowed five unplanned absences of unlimited duration per year, as well as other permitted absences. Additionally, because of her condition, Providence worked with Plaintiff to give her even more flexibility than the standard policy.
Plaintiff was not satisfied and sought an accommodation that would allow her an unlimited number of unplanned absences from her job – in short, she wanted to come and go as she pleased. Providence refused and eventually terminated Plaintiff due to her chronic and continued attendance problems.
Plaintiff sued the hospital arguing that the hospital violated the ADA by not offering her reasonable accommodations. The trial court disagreed and ruled in favor of Providence; the Ninth Circuit affirmed.
The court reasoned that, because of the nature of being a NICU nurse, regular and predictable attendance at work is an essential job function. NICU nurses provide intensive life-saving care to premature infants. Absences among the NICU staff can jeopardize the care these infants receive. If the hospital agreed to Plaintiff’s proposed “reasonable” accommodation, Plaintiff would be exempt from an essential job function – showing up to work.
The court stated that an employer does not need to provide accommodations that compromise performance quality – to require this of a hospital could, quite literally, be fatal.