Employment Law Journal

Ninth Circuit Upholds Reasonable Employee Attendance Policy as Basis for Termination

By Bruce D. Voss

Showing up for work on a regular, predictable basis is important, the Ninth Circuit has ruled in a significant disability case.

In Samper v. Providence St. Vincent, a neo-natal intensive care unit nurse tried to opt out of her employer’s attendance policy, which permitted five unplanned absences of unlimited duration each year as well as other permitted absences. The plaintiff nurse had fibromyalgia, a condition that limited her sleep and caused her chronic pain, and based on that disability she claimed she should be allowed additional absences as a “reasonable accommodation” for her disability. After eight years of attendance problems and numerous warnings, the employer hospital finally terminated the nurse. The nurse sued under the Americans with Disabilities Act for alleged “failure to accommodate”.

In a sharply worded opinion, the Ninth Circuit found that the nurse was not a “qualified individual able to perform the essential functions of the job” under the ADA. Regular attendance, the court found, was clearly an “essential function” of a NICU nurse position.

The Ninth Circuit wrote: “It is a rather common-sense idea that if one is not able to be at work, one cannot be a qualified individual. . . Attendance may be necessary for a variety of reasons. Sometimes, it is required simply because the employee must work as part of a team. Other jobs require face-to-face interaction with clients and other employees. Yet other jobs require the employee to work with items and equipment that are on site. . . 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 hospital was under “no obligation to give (the nurse) a free pass for every unplanned absence.”

The opinion is an important affirmation of employers’ reasonable attendance policies, which acknowledge that some unplanned leave are permitted but set firm limits on the total number of absences in a given period. Any employer hoping to rely on such a policy should make clear, within the policy distributed to employees, why regular on-site attendance is essential to perform the particular job duties.

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