Written by attorney Randy T. Enochs

9th Circuit Discusses "Attendance" as Essential Function of Job in ADA Claim

The Court of Appeals for the Ninth Circuit recently released an opinion discussing the issue of attendance as an essential job function for purposes of the Americans with Disabilities Act (ADA) providing further guidance on how attendance is to be viewed in ADA claims with respect to essential job function. The case involves a nurse, Monika Samper, who was employed as a neo-natal intensive care unit (“NICU") nurse with Providence Hospital for eleven years but developed fibromyalgia, a condition that limits her sleep and causes her chronic pain. The employer's attendance policy was as follows:

Employees are allowed to take up to five unplanned absences during a rolling twelve-month period. In addition, “[u]nplanned absences related to family medical leave . . . jury duty, bereavement leave and other approved bases are not counted" towards this limit, and each absence, however long, counts as only one occurrence.

Samper challenged this policy and sought to opt-out of it due to her disability. In response to Samper's attendance issues related to her disability, the employer did accommodate her by allowing her to call in when having a bad day, and move her shift to another day in the week. Providence did not require Samper to find a replacement for her shift. However, this accommodation required further accommodation as Samper continued to have attendance issues which ultimately led to her termination (oddly enough, Samper was absent from the termination scheduled). This then prompted Samper to file an ADA claim citing failure to accommodate.

The district court granted summary judgment in favor of Providence, reasoning that because Samper was unable to adhere to Providence’s attendance policy, she was unqualified for her position as a matter of law. The court also held that the 2006 part-time work plan was a reasonable accommodation, and that the accommodation that Samper requested, to obtain a waiver from the five unplanned absence limit, was unreasonable. In upholding the district court's grant of summary judgment, the 9th Circuit held that "Samper [ran] into an insurmountable hur- dle, however, in arguing that regular attendance is not an essential function of the NICU nurse position." The Court noted that it was Providence's burden to show that attendance was an essential function of the job and further highlighted precedent showing where attendance is an essential function: Attendance may be necessary for a variety of reasons. Sometimes, it is required simply because the employee must work as “part of a team." Hypes v. First Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998). Other jobs require face-to-face interaction with clients and other employees. Nowak v. St. Rita High Sch., 142 F.3d 999 (7th Cir. 1998) (teacher); Nesser v. Trans World Airlines, Inc., 160 F.3d 442 (8th Cir. 1998) (airline customer service agent); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994) (teacher). Yet other jobs require the employee to work with items and equipment that are on site. EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001) (en banc) (dockworker); Jovanovic v. In-Sink-Erator, 201 F.3d 894 (7th Cir. 2000) (tool and die maker); Waggoner, 169 F.3d 481 (production worker); Corder v. Lucent Techs., Inc., 162 F.3d 924 (7th Cir. 1998) (telephone customer sup- port); Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir. 1997) (computer consultant); Rogers v. Int’l Marine Termi- nals, Inc., 87 F.3d 755 (5th Cir. 1996) (mechanic); Jackson v. Veterans Admin., 22 F.3d 277 (11th Cir. 1994) (housekeeping aide); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (coding clerk under the Rehabilitation Act); Law v. U.S. Postal Serv., 852 F.2d 1278 (Fed. Cir. 1988) (mail handler under the Reha- bilitation Act).

The Court found Samper's job as a neo-natal nurse highly illustrative of a job that requires on-site regular attendance. To rebut Providence's showing that regular attendance was an essential function, Samper could onlyhighlight hat Providence’s policy allows for some unplanned absences, and that her absences had exceeded those permitted under the policy in past years without repercussions. The Court then discussed precedent where regular on-site attendance may NOT be an essential job function:

See Waggoner, 169 F.3d at 485 (“In some jobs . . . working at home for a time might be an option."); Jackson, 22 F.3d at 279 (“[O]ther jobs . . . can be performed off site or deferred until a later day."); Carr, 23 F.3d at 530 (“Indeed, in appro- priate cases, that section requires an agency to consider work at home, as well as reassignment in another position, as poten- tial forms of accommodation."). Similarly, in Humphrey, a medical transcriptionist provided evidence that other trans- criptionists were allowed to work at home, and therefore, his attendance was not required for performance. 239 F.3d at 1137. However, even when an employee “work[s] at home, . . . regular hours on a consistent basis" often remain a requirement. Carr, 23 F.3d at 530.

The case is Samper v. Providence St. Vincent, Case No. 10-35811

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