Accommodating employees with disabilities, as required by the Americans with Disabilities Act (ADA), when the accommodation involves frequent unscheduled absences from work poses a difficult dilemma for employers. The employee contends her condition requires an exemption from the attendance policy, while the employer finds unplanned absences disruptive to business.

Recently, the Equal Employment Opportunity Commission has taken a hard line on attendance policies that result in automatic termination of disabled employees who exceed the maximum number of days off allowed (see “EEOC scrutinizes blanket policies for ADA violations“). And with the expansion of conditions covered by the ADA, more employers are confronting the problem of whether attendance policy exemptions constitute a “reasonable accommodation” under the law.

So it was good news for employers when the 9th Circuit upheld dismissal of a lawsuit brought by a neonatal intensive care unit (NICU) nurse who requested exemption from a hospital attendance policy because she suffered from fibromyalgia. In Samper v. Providence St. Vincent Medical Center, the appeals court on April 11 rejected the plaintiff ’s argument that regular attendance is not an essential function of her position.

“The common-sense notion that onsite regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse,” the court said.

While directly addressing the life-or-death potential of an understaffed NICU unit, the court also outlined factors for determining whether attendance is essential that could apply to many positions across the spectrum of industries: the need to work as part of a team, the need for face-to-face interaction with clients or other employees and the need to work with on-site equipment.

“It’s a very signif icant decision because one of the most difficult issues for employers to analyze is granting time off. This really helps employers who are rigorous in analyzing essential job functions to conclude that regular and predictable attendance is an essential function of most jobs,” says Mark Kisicki, an Ogletree Deakins shareholder.

Trinity of Requirements

The plaintiff in the case, Monika Samper, regularly exceeded the five unplanned absences per year permitted under the hospital’s policy. When she was diagnosed with fibromyalgia in 2005, Providence agreed to allow her to call in when she felt she could not come to work and move her shift to another day. When her attendance problems continued, she requested an exemption from the attendance policy. She was eventually fired and filed suit against the hospital alleging a violation of the ADA. The trial judge granted summary judgment to Providence, and the 9th Circuit upheld that ruling.

“The plaintiff said, ‘You allow five unplanned absences, why not more? The impact of me calling in is no different the sixth, seventh, eighth, ninth and 10th time than it was the first through fifth time,’” says Amy Angel, a partner at Barran Liebman. “The court said ‘No, the employer is allowed to have a reasonable attendance policy. They can draw the line somewhere.’” 

The NICU nurse position combines “the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, faceto- face interaction with patients and their families and working with medical equipment,” the appeals court said. It noted that because of the special training involved, it is difficult to find replacements on short notice, and being understaffed can compromise patient care. And it pointed out that the hospital had made “Herculean efforts” to accommodate Samper before terminating her.

Unresolved Dilemma 

Tony Rizzotti, a Littler Mendelson shareholder, agrees that the decision represents a positive development for 9th Circuit employers, but cautions against over-reaching on its implications. He notes that the case specifically addressed unplanned absences and shouldn’t be viewed as extending to planned leaves of absence, which generally cause less hardship on the employer.

Angel adds that Samper was a part-time employee who had not worked the requisite number of hours to qualify for an unpaid leave of absence under state and federal medical leave laws. She cautions employers to review their obligations under those laws as well as the ADA before making decisions on granting employees time off for a disability.

Kisicki recommends including attendance and punctuality as essential job functions in job descriptions for which they are, in fact, essential. It’s also important to consistently enforce the attendance policy. “It will undermine the employer’s argument if another employee in that job is not held to the same standard,” he says.

Other lessons from the case include the value of working with the employee to try to find a reasonable accommodation. “The court gives the employer credit for trying to work through difficult issues with employees,” Rizzotti says.

The employer also got credit for articulating why it was important for the plaintiff to come to work. “Whenever an employer is considering an accommodation request, you should think about how you will explain to someone who doesn’t know your business why this is an undue hardship, even if you think the answer is self-evident,” Rizzotti adds.