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When is Attendance an Essential Job Function under the ADA?

September 4, 2012

Overview

Just how essential is showing up for work on a predictable basis? This is the question recently addressed by the Ninth Circuit in Samper v. Providence St. Vincent Medical Center, 675 F3d 1233 (9th Cir. 2012). In this case, the court answered that attendance really is essential especially when an employee's presence at the worksite is an essential job function.

Monika Samper, a nurse in the neo-natal intensive care unit (NICU), suffered from fibromyalgia. This condition disrupted her sleep and caused her chronic pain resulting in unplanned absences from work. Her employer attempted to provide a reasonable accommodation and allowed Samper to call in when she couldn't come to work and to move her shift to another day without finding a replacement. Despite these arrangements, Samper continued to have attendance problems and was ultimately terminated. After termination, Samper filed a lawsuit claiming, among other things, that her employer failed to accommodate her disability in violation of the Americans with Disabilities Act (ADA).

While regular attendance is not always an essential function of all jobs, a majority of the federal circuits (including the Ninth Circuit) recognize that attendance may be necessary for a variety of reasons including teamwork, face-to-face interaction with clients, and working with items or equipment that are at the employer's place of business. In Samper, the Ninth Circuit easily found that the job of a NICU nurse clearly involved all three of these requirements. The court concluded that an employer is not required to provide a reasonable accommodation that exempts an employee from an essential job function.

So what can employers learn from the Samper decision?

In all cases, the employer has the burden of showing what job functions are essential. The employer in Samper was able to point to a written job description which required strict adherence to the attendance policy. The job description also listed "attendance" and "punctuality" as essential functions of the position. Thus, employers should include regular attendance as an essential job function in its written job descriptions and explain why it is essential. While the Ninth Circuit looked favorably on the hospital's efforts to accommodate Samper, employers should also be aware that allowing employees to work from home or providing flextime and telecommuting options for some employees may make it more difficult to argue that regular on-site attendance is essential.

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