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Showing Up For Work: Do Courts See it as ‘Optional’?

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Finally! A court has figured it out. When disabled employees take leave under the Americans with Disabilities Act (ADA), it’s not always an open-ended ticket to calling in absent. If regular attendance is an essential element of the job, then calling in absent is not a “reasonable” accommodation ...

Case in Point: Monika Samper, a neonatal intensive care nurse at an Oregon hospital, suffered from fibromyalgia, a condition that limits her sleep and causes chronic pain. Samper regularly exceeded the number of allowable unplanned absences.

Eventually, the hospital agreed to a highly flexible schedule that allowed Samper to call in and move her shift whenever she was having a bad medical day. Despite this accommodation, Samper’s attendance record did not improve, so she was ultimately discharged.

Samper sued the hospital under the ADA for failing to provide her with the “reasonable accommodation,” as the ADA requires employers to do for disabled employees. While the hospital acknowledged that Samper qualified as “disabled” under the ADA, it defended itself by arguing that a free open-ended pass for absences was not a reasonable accommodation for jobs like hers in which physical attendance was an essential element of the job.

NICU nurses can't do their job at home, the hospital argued. They need to be present in the hospital to perform the key function of caring for sick infants. If Samper could not be present, she could not perform the essential elements of her job, either with or without a reasonable accommodation. Therefore, the hospital argued, she was not a “qualified individual” protected by the ADA.

Ruling: The court focused its analysis on this key question: “Just how essential is showing up for work on a predictable basis?” In the case of a NICU nurse, the court concluded, attendance is not only essential but a matter of life or death, literally. The hospital won. (Samper v. Providence St. Vincent Med. Ctr., 9th Cir., 4/11/12)

3 Lessons Learned … Without Going to Court

1. Ask yourself, “Is showing up essential?” There are many jobs in all industries in which physically coming to work on a predictable basis is essential. Otherwise, the job cannot be done.

2. Include that fact in the job description. Making clear in the job description that physical attendance is an essential element of a job will help protect your organization from ADA lawsuits. Review all job descriptions for attendance requirements.

3. Make efforts to provide reasonable accommodations. The court noted the hospital made “Herculean efforts” to accommodate Samper. However, she essentially asked that her reasonable accommodation be an exemption of one of her essential functions, regular attendance. This made Samper an unqualified individual and, therefore, not protected by the ADA.

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