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by Jennifer Brown Shaw and Alayna Schroeder | The Daily Recorder | May 15, 2012

Sometimes, an employee with a disability needs a “reasonable accommodation”-a change to the work environment or the way the job is performed that allows the employee to perform the job’s essential functions. Temporary changes to attendance requirements and leaves of absence may be forms of reasonable accommodation in certain circumstances. However, employers are not required to remove essential job functions. The U.S. Ninth Circuit Court of Appeals in Samper v. Providence St. Vincent Medical Center, addressed when regular attendance is an essential job function under the Americans With Disabilities Act (ADA).

The Facts

Monika Samper was a neo-natal nurse. She was diagnosed with fibromyalgia, which limited her sleep and caused her chronic pain. Providence’s attendance policy permitted Samper to take five unplanned absences per year, in addition to other permitted absences. Samper regularly exceeded the number of permitted unplanned absences. Many of her unplanned absences were unrelated to her fibromyalgia, but Providence made exceptions to the policy for her.

Also, Providence provided Samper with various accommodations related to her fibromyalgia. Eventually, however, Providence discharged Samper because of her attendance-related problems, including exceeding the number of permitted unplanned absences.

Samper sued, claiming Providence violated the ADA because it did not provide her with a reasonable accommodation. She asserted Providence should have waived the attendance policy for her and allowed her to take an indeterminate number of unplanned absences.

The Court’s Ruling

Upholding the district court’s grant of summary judgment to Providence, the Ninth Circuit panel reasoned that regular attendance was an essential function of Samper’s job. Samper’s regular, physical presence was necessary because her position required teamwork, face-to-face interaction with patients and their families, and working with medical equipment. Because Samper could not attend work reliably with or without reasonable accommodation, she was not a “qualified” individual with a disability, and therefore not protected by the ADA.

The court did not create a blanket rule making regular attendance an essential job function for every job. The court considered the specific evidence in the case, including Samper’s job description, which showed that attendance was an essential job function. Samper’s job required specialized training, it was difficult to find a replacement when she was unavailable, and her absences could have serious (potentially fatal) consequences. The court distinguished Samper’s case from a previous opinion involving a medical transcriptionist, Humphrey v. Huntington Memorial Hospital, because the duties of a medical transcriptionist did not require the employee’s physical presence.

Moreover, Samper’s proposed accommodation-to be exempted following the attendance policy job-was not reasonable, because it effectively excused her from performing an essential function of her job. Providence had already provided her with various reasonable accommodations, and was not obligated to give Samper a “free pass” for every unplanned absence.

Lessons for Employers

This case offers some positive news for employers. When, like Samper, regular attendance is required so the employee can work with specific coworkers, customers, and equipment, and the employee’s absence will have very serious impact that cannot be easily ameliorated, attendance may properly be considered an essential job function. On the other hand, if the employee’s absence will have little effect or a replacement can be easily found, an employer is less likely to be able to make that argument successfully. So, employers should not assume attendance is an essential job function in every case, and instead must evaluate each specific case based on factors like the employer’s policy, the nature of the job, and the accommodation requested.

If attendance is an essential job function, that fact should be reflected in the job description. And even in those instances, the employer must still engage in an interactive discussion with an employee who is not meeting attendance requirements, to identify potential accommodations. In other words, the employer must consider whether there are other steps it can take to help the employee improve attendance. In some cases, it may even consider reassigning the employee to another position for which attendance is not an essential function.

Finally, employers should consistently follow their own lawfully drafted attendance policies. Providence made exceptions to its policy for Samper for absences that were not disability-related. After Providence could no longer tolerate her poor attendance and fired Samper, she argued that Providence’s tolerance of her absences proved that attendance was not an essential function of her job. While the argument was ultimately unsuccessful, Providence may have been able to avoid it in the first place if it had held Samper to its policy.

The Samper decision recognizes the workplace realities of employers trying to meet business objectives that require regular attendance. Employers should feel confident enforcing attendance requirements against employees with disabilities when attendance is an essential function of the job. However, employers must make the determination based on the facts in each particular case.