Employees discharged because of poor attendance sometimes claim that the employer violated the Americans with Disabilities Act (ADA) when the employee’s absences resulted from a disability. In essence, the employee asserts that the employer should have accommodated the employee’s absenteeism, as the employee was otherwise able to perform the job. The U.S. Court of Appeals for the Ninth Circuit recently held, in Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233, 2012 U.S. App. LEXIS 7278 (9th Cir. 2012), in precisely that factual context that even if an employee’s absenteeism is the result of a disability, an employer may not be held liable under the ADA when attendance is an “essential function of the job.”

To preserve the common-sense notion that reporting to work is an essential function of a job, employers should craft job descriptions and attendance policies that highlight the business justification for requiring regular attendance. Courts have demonstrated a willingness to look at employers’ written job descriptions and the realities of particular workplaces to evaluate whether attendance is indeed an essential job function.

Background

The ADA prohibits employers from discriminating against qualified individuals with disabilities. A “qualified” individual is one who can perform the “essential functions” of the job, with or without reasonable accommodation. 42 U.S.C. §12111(8). To make out a claim under the ADA, a plaintiff must demonstrate: 1) that he was disabled within the meaning of the ADA, 2) he was qualified to perform the essential functions of the job (with or without a reasonable accommodation), and 3) his employer took an adverse employment action against him because of his disability. See Ramos-Echevarria v. Pichis, 659 F.3d 182, 186 (1st Cir. 2011).

Issue of Fact

In Samper v. Providence St. Vincent Medical Center, the Ninth Circuit held that attendance is an essential job function for a neo-natal intensive care (NICU) nurse, such that an employee who could not show up for work on a predictable basis was not qualified for the job, regardless of disability or attempts at accommodation. Plaintiff Monika Samper was discharged from her position as an NICU nurse for exceeding the hospital’s unplanned absence limit and a long history of “general problems with attendance.”

Upon termination, Samper filed suit, alleging that the hospital violated the ADA due to a failure to accommodate, among other claims. Samper, who suffered from fibromyalgia, requested that she be allotted additional unplanned absences, above the five already allowed in a 12-month period pursuant to the hospital’s attendance policy. The district court granted summary judgment in favor of the hospital, finding that because Samper was unable to adhere to the hospital’s attendance policy, she was unqualified for her position as a matter of law. Samper appealed, and the Ninth Circuit affirmed the lower court’s decision.

The Ninth Circuit pointed to “well-established ADA analysis” which instructs courts to first identify the job’s essential functions, and then evaluate whether the plaintiff has established that she can perform those functions with or without reasonable accommodation. Samper, 675 F.3d at 1240. In the Ninth Circuit’s words: “[j]ust how essential is showing up for work on a predictable basis?” Samper, 675 F.3d at 1235.

The Samper court pointed to a variety of reasons which could make attendance an essential job function: The employee works as part of a team, the job requires face-to-face interaction with clients and other employees, the employee works with on-site equipment, or the position requires specialized training, such that finding last-minute replacements is difficult. The court observed that attendance is essential for an NICU nurse, because she must work as a team with other nurses and medical staff, engage face-to-face with patients and their families, and work with medical equipment. The court further relied on the employer’s written job description for NICU nurses, which listed “Attendance” and “Punctuality” as essential functions.

Once the court established that attendance was an essential job function, and that Samper’s erratic attendance record did not indicate she was able to reliably show up to work, it concluded that she was not qualified to be an NICU nurse. In fact, her employer did not dispute that Samper was disabled or that she possessed the technical skills for the job, but neither of these facts were relevant, because her irregular attendance demonstrated that she was unable to perform an essential function of her job.

As for Samper’s reasonable accommodation argument, the Ninth Circuit pointed out that she never actually quantified the number of additional unplanned absences she was requesting. Samper’s requested accommodation would therefore allow her to miss work whenever she felt it necessary. The court observed that this

request so far exceeds the realm of reasonableness that her argument leads to a breakdown in well-established ADA analysis…Samper essentially asks for a reasonable accommodation that exempts her from an essential function, causing the essential functions and reasonable accommodation analyses to run together. Samper’s approach would eviscerate any attendance policy, leaving the hospital with the potential for unlimited absences.

Samper, 675 F.3d at 1240 (emphasis in original). The hospital had previously granted Samper less extreme accommodations, such as not scheduling her shifts on consecutive days, allowing her to call in when having a bad day and move her shift to later in the week, and granting her leaves of absence. Despite a variety of accommodations over time, Samper was not able to stay at or under the allotted five unplanned absences over a 12-month period.1

Attendance Not Essential

Despite one court’s observation of the “rather common-sense idea…that if one is not able to be at work, one cannot be a qualified individual,” Waggoner v. Olin, 169 F.3d 481, 482 (7th Cir. 1999), courts have identified issues of fact as to whether regular, on-site attendance is an essential job function for particular professions. In Breen v. Department of Transportation, 282 F.3d 839 (D.C. Cir. 2002), the U.S. Court of Appeals for the District of Columbia held that an issue of fact existed as to whether an office automation clerk was qualified to perform the essential functions of her job where she required an alternative work schedule.2

Plaintiff Victoria Breen’s work as an automation clerk for the Federal Highway Administration (FHWA) included the maintenance of office files. After being diagnosed with obsessive-compulsive disorder, Breen proposed an “alternative work schedule,” under which she would work one hour past regular business hours, in exchange for a day off every two-week period. Breen offered evidence that her disability made it difficult to complete her filing obligations during regular business hours because of the interruptions inherent in the workplace. Her employer declined to grant this accommodation, and Breen was subsequently terminated.

The D.C. Circuit reversed the district court’s grant of summary judgment for the employer, finding an issue of fact as to whether Breen could perform the essential functions of her position with a reasonable accommodation. The FHWA argued that it could not accommodate Breen’s alternative schedule because they needed her in the office every day; daily attendance, the employer asserted, was an essential function of the automation clerk position. The court considered Breen’s assertion that the FHWA allowed other employees in similar positions to work alternative schedules, and noted that daily deadlines were not a critical aspect of her job. These assertions created a genuine issue of material issue of fact as to whether Breen’s alternative schedule would be “incompatible with the essential functions of her position.” Breen, 282 F.3d at 843.

Practical Suggestions

The Samper and Breen cases indicate that attendance is more likely to be deemed an “essential” job function for positions that require teamwork, face-to-face interaction, work with on-site equipment, immediate and urgent response times, and specialized skill, rather than those that are largely autonomous and do not have pressing deadlines. Notwithstanding this general observation, employers should consider the following measures to increase the likelihood that a court will agree that attendance is an essential function for given positions.

Job Descriptions. Employers should include regular attendance as an essential job function in written job descriptions, and explain why it is essential (for example, because employees work as part of a team or use on-site equipment). Indeed, the Samper court credited the employer’s written job description, which required strict adherence to the attendance policy and listed “Attendance” and “Punctuality” as essential functions under “standards of performance.”

Telecommuting. Employers should be aware that if they allow “flextime” and telecommuting options for some employees, employees may seek to use those employment arrangements as grounds to argue that on-site attendance is not an “essential” function of the job. In Breen, the fact that other employees were allowed to work alternative schedules created an issue of fact as to whether Breen’s showing up at the office every day was truly essential. Breen, 282 F.3d at 842; see also Humphrey v. Mem’l Hosp. Ass’n, 239 F.3d 1128, 1137 (9th Cir. 2001) (finding that physical attendance at the office is not an “essential job duty” for a transcriptionist where employer allowed some transcriptionists to work from home). Employers may have more difficulty arguing that daily, on-site attendance is “essential” where some employees are allowed to work from home.

Flexible Absenteeism Policies. Employers may mitigate the impact of absenteeism by including within their attendance policies the possibility that employees sometimes may need to take unscheduled absences or a limited number of absences for legitimate reasons. For example, the employer in Samper permitted five unscheduled absences for NICU nurses within a rolling 12-month period. The Ninth Circuit looked favorably on this policy, which demonstrated a balancing of interests between the employer’s need for regular attendance, and the flexibility required from time-to-time by employees:

Providence endeavored to balance the realities of illness, family matters and other unplanned emergencies faced by its employees against the vital demands of critical infant care, by cabining the overall number of absences. Samper’s arguments do nothing to undermine Providence’s principal claim, backed up with evidence: unplanned absences are a hardship to the NICU, and the written policy represents the outer limit to the number of unplanned absences that can be tolerated without serious repercussions on patient care.

Samper, 675 F.3d at 1240. This allowance for unplanned absence did not, the court found, undermine the employer’s argument that attendance was essential, but rather showed that the hospital had made a concerted effort to consider the needs of its employees in crafting its attendance policy. Samper’s inability to operate within this flexible policy indicated that she was simply unable to perform an essential function of an NICU nurse: namely, showing up to work on a regular and predictable basis.

Jeffrey S. Klein and Nicholas J. Pappas are partners at Weil, Gotshal & Manges. Valerie Wicks, an associate at the firm (not yet admitted to practice), assisted with the preparation of this article.

Endnotes:

1. Many state and local laws do not track the ADA’s requirement that an individual be “qualified” (able to perform essential job functions with or without reasonable accommodation) in order to make out a successful discrimination claim. Employers should also consider the Family Medical Leave Act (FMLA) in connection with absenteeism. See Jeffrey S. Klein and Nicholas J. Pappas, FMLA Claims Based on Enforcement of Attendance Policies, NYLJ, Oct. 4, 2004; Jeffrey S. Klein and Nicholas J. Pappas, Discharging Employees on Disability Leave, NYLJ, Dec. 4, 2000 (discussing both the ADA and FMLA).

2. Plaintiff filed suit under the Rehabilitation Act, which applies the same standards as the ADA, and prohibits disability discrimination in federal employment and other federal programming.