New Jersey lawyer focusing on special education law and employment law


Nurse’s Regular Attendance is Essential to Job

“Is showing up for work on a predictable basis essential to the job?” This seems to be a very simple question.

Yet, that is the essentially the question that the Ninth Circuit was asked to answer in a case involving a woman who alleged that she was discriminated against on the basis of disability in Samper v. Providence St. Vincent Medical Ctr. (3:09-cv-01183-AC) (9th Cir., April 11, 2012).

Employee time clock to check in and out of workFor eleven years, Monika Samper worked as a nurse at a hospital in the neo-natal intensive care unit. (p. 3) Ms. Samper never worked full time; and throughout her employment, she had chronic attendance problems. (p. 4)

In the early years of her employment, Ms. Samper had personal matters which required her to take a number of absences. (p. 4) In her later years, Ms. Samper took leaves of absences in connection with her fibromyalgia condition, as well as other personal issues. (pp. 4-5)

Hospital personnel accommodated Ms. Samper by offering a flexible schedule, even going so far as to assign her two shifts a week on non-consecutive days (pp. 4-5) Despite these accommodations, Ms. Samper still continued to take more than the allowable leaves of absences permitted by the Hospital’s extremely generous attendance policy (see p. 3)

When the Hospital terminated Ms. Samper for excessive absences, Ms. Samper filed a lawsuit, seeking an exception from the Hospital’s attendance policy and alleging that the Hospital failed to provide accommodations pursuant to the Americans with Disabilities Act. (p. 6)

The Hospital conceded, and the court accepted, that Ms. Samper had a disability (fibromyalgia). But the fact that Ms. Samper had a disability did not entitle her to an unlimited number of absences. The requested accommodation must be reasonable. In the court’s words:

The 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. This at-risk patient population cries out for constant vigilance, team coordination and continuity. As a NICU nurse, Samper’s job unites the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, face-to-face interaction with patients and their families, and working with medical equipment.

(p. 8)

In the court’s view, there was no question that in Ms. Samper’s line of work, regular attendance was required. There must be some expectation of regularity. If Ms. Samper’s attendance continues to be irregular and continues to take unlimited leaves of absences, there will be substantial staffing issues, which will certainly place patients in the NICU at risk.

In the end, the court affirmed the lower court’s opinion. Ms. Samper’s request for a waiver of the attendance policy was not reasonable. As an NICU nurse, regular attendance is absolutely essential to the job.

The court’s decision should not be surprising.

In a similar case decided in the Seventh Circuit in March 2012, a part-time mail handler for the United States Postal Service worked only one week in his last three years of employment due to an alleged disability. Although the reasoning and grounds for ruling in favor of the USPS were different from the Samper case, Steffen v. Donahoe is definitely worth the read because it gives us another vantage point of what arguments might be raised when an allegedly disabled employee has chronic attendance problems.

Disability accommodations on the job are fact-specific and can raise complex issues. Questions regarding whether an accommodation is reasonable and whether a specific accommodation might impose an undue hardship should be addressed on a case-by-case basis. While job restructuring, job reassignments, and modified job schedules may be valid accommodations, irregular attendance probably isn’t.

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