By Kim Silvers, SPHR-CA

A recent decision by the Ninth Circuit Court of Appeals gives employers some reinforcement to enforce attendance policies  notwithstanding an employee’s claim of the need for reasonable accommodation for a serious health condition.  The somewhat liberal Court denied  a neo-natal intensive care unit (NICU) nurse suffering from fibromyalgia unlimited flexibility in her work schedule and attendance.  The Court ruled that the regular and planned attendance of this skilled employee was an essential function of her job. Although not a defense for all attendance issues, this employee’s inability to work the schedule became an undue hardship on the employer and the employer was not required to further accommodate her absences.

In Samper v. Providence St. Vincent Medical Center Monica Samper, a NICU nurse, sought unlimited unplanned absences from her job, although the Providence St. Vincent attendance policy allowed five unplanned absence per year plus other permitted absences.  Providence St. Vincent offers many medical services, including a high level of intensive care to premature infants.  NICU nurses require special training and skills that limit the number of nurses who may be called in to fill in for this role.

Samper was employed by Providence St. Vincent for eleven years and was diagnosed with fibromyalgia in 2005.  Her condition limited her sleep and caused chronic pain.  Samper did not work full time, but regularly exceeded the allowed number of unplanned absences under the employer’s policy.  She was repeatedly given performance appraisals and improvement plans  noting the need to improve her attendance record.  The employer worked to accommodate her over the years for her health issues as well as personal matters, but Samper’s attendance continued to be below standards.

In 2008 the employer issued Samper  a corrective action notice for seven unplanned absences over the previous twelve-month period.  The employer eventually gave her an ultimatum – the part time position would cease to exist and she could transfer to another position or face termination.  Samper subsequently had two more unplanned absences and the employer finally terminated her for the excessive absences.

Samper filed suit alleging that the employer had failed to accommodate her under the requirements of the Americans with Disabilities Act (ADA). Providence St. Vincent argued that Samper was justifiably terminated because she was unable to adhere to the attendance policy and was unqualified for the position as such.  The District Court agreed in granting summary judgment in favor of the employer.  Samper appealed to the Court of Appeals.  The Ninth Circuit’s Opinion supported the employer in that regular attendance plays a critical role