This week the Ninth Circuit held that where attendance is an essential function of the job (isn't it always?), an employer's enforcement of its attendance points policy as to a disabled employee does not constitute a failure to reasonably accommodate under the ADA. In this particular case, the employee was a neonatal intensive care nurse who had an abominable attendance record due to a multitude of stated reasons, ranging from fibromyalgia to personal life issues. Even though she worked part-time and only a couple of shifts per week, she was continually absent. She also took a variety of leaves of absence, all accommodated by her employer. The employer had an attendance policy that allowed up to five unplanned absences in a rolling 12 month period. This employee regularly exceeded the limit and had a history of performance discipline for her unexcused absences. The employer quite reasonably tried to work with the employee to save her, allowed several exceptions from the policy for her, and gave her numerous chances to improve her attendance and escape termination. The employee nonetheless did not improve her attendance and admittedly continued to exceed the allowed unplanned absences under the attendance policy (she was even absent for a planned meeting to discuss her attendance). She requested that her employer except her from the attendance policy and essentially allow her uncapped unplanned absences, apparently as a "reasonable accommodation" for some sort of disability. The employer did not agree. She was ultimately terminated (duh). Not to be deterred, she filed a lawsuit claiming the employer violated her ADA rights by not excepting her from the attendance policy as a reasonable accommodation under the ADA.
In the lawsuit, the employer did not dispute that the employee was disabled. The dispute focused instead on whether the employer had a duty to except the employee from the attendance policy as a reasonable accommodation. The trial court said no and granted the employer summary judgment. The employee appealed to the Ninth Circuit, which agreed with the trial court. The Ninth Circuit held that the employer had adequately established that regular attendance is an essential function of the position of a neonatal ICU nurse and that an employer is not required by the ADA to relieve a disabled employee from essential functions as an accommodation. The case is Samper v. Providence St. Vincent and the decision is here.