Blog Archives

Ninth Circuit Rules Attendance Is Essential Function for NICU Nurse

In Samper v. Providence St. Vincent Medical Center (9th Cir., April 16, 2012), the Ninth Circuit ruled that an employer did not violate the Americans with Disabilities Act (“ADA”) when it denied the request of an employee who had fibromyalgia to exempt herself from the employer’s attendance policy.

In that case, the plaintiff worked as a nurse in the neo-natal intensive care unit (“NICU”) unit of a medial care center.  The plaintiff also had a medical condition called fibromyalgia, which limited her ability to sleep and caused her chronic pain.  Due to her fibromyalgia, the plaintiff was often absent from work.

The employer had an attendance policy that allowed employees to take up to five unplanned absences during a 12-month rolling period.  The employer also took the position that regular attendance was an essential function of an NICU nurse.  Specifically, absences from NICU staff can jeopardize patient care because NICU nurses require special training , and therefore, the universe of nurses that can be called in a the last minute is limited.  Thus, being understaffed is highly undesirable, and can potentially compromise patient care.

Over the course of several years, the employer provided the plaintiff with several accommodations, including allowing her to call in on bad days, various scheduling adjustments, readjusting her schedule so that she did not work consecutive days, and granting her numerous extended leave of absences.  None of the accommodations, however, were sufficient.  Finally, due to the plaintiff’s repeated violations of the attendance policy, the employer decided to terminate the plaintiff’s employment.

The plaintiff sued and argued that she had been denied a reasonable accommodation for her disability.  In her lawsuit, the plaintiff argued she should have been exempted from the company’s attendance policy.  The District Court disagreed, and dismissed her lawsuit.  The Ninth Circuit upheld the dismissal.

In issuing its decision, the Ninth Circuit noted that regular attendance was indeed an essential function of an NICU nurse.  The court also added that, where performance of a job requires attendance at the job, irregular attendance compromises essential job functions.  With these concepts in mind, the court stated that 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.”

The Samper decision was certainly a good result for employers.  It was also, however, very fact specific.  In the Samper case, regular attendance was certainly a mandatory component of the NICU nurses’ jobs.  In other situations, however, where employees are more “fungible” or regular physical attendance is not as essential as it would be for an NICU nurse, employers should be cautious in how they handle employees who require leave due to disabilities.  On that note, employers should be aware of a prior Ninth Circuit decision in Humphrey v. Memorial Hosps. Ass’n, (9th Cir. 2001), where the court ruled that a medical transcriptionist who had OCD should have been granted an accommodation to (occasionally) work from home, as opposed to requiring her to physically show up for work for her scheduled shifts.  In that case, the employer did not dispute that it would have been possible for a transcriptionist to work from home; in fact, several were already doing so.  Accordingly, the court ruled that the employer violated the ADA when it terminated the employment of the transcriptionist, because physical attendance was not an essential job function for that employee.

You can read the Samper case here and the Humphrey case here.