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Unpredictable Attendance – Requirements Under the Americans with Disabilities Act

Added by Hawley Troxell in Articles & Publications, Employment Law on June 7, 2012

The duty to provide reasonable accommodations to qualified individuals with a disability is considered one of the most important statutory requirements of the Americans With Disabilities Act (“ADA”). Not unexpectedly, it has also resulted in a significant amount of litigation. One area in which there has been particular activity relates to the duty of employers to accommodate employees whose attendance is unreliable and/or unpredictable. A new case now sheds additional guidance on this issue. The purpose of this article is to provide an overview of this case and its potential impact on an employer’s obligation to provide reasonable accommodations under the ADA.

Background

In considering reasonable accommodation issues, it is important to remember that reasonable accommodations involve the removal of workplace barriers. Workplace barriers may be physical obstacles, such as inaccessible facilities or equipment; yet, more commonly they are procedures or rules (such as rules concerning when or where work is performed, when breaks are taken, when leave is given, or how tasks are accomplished). Accordingly, employers must, at a minimum, consider possible modifications of jobs, processes, or tasks so as to allow an employee with a disability to work, even where established practices or methods seem to be more efficient or otherwise serve legitimate purposes.

With respect to attendance issues, a vast majority of courts that have considered the issue have concluded that attendance is essential for most jobs. Because employers generally do not need to reassign or remove essential job functions, conventional wisdom is that employers need not accommodate employees whose attendance is unreliable and/or unpredictable, even if the employee’s attendance problems are caused by or related to an ADA qualifying disability. Nevertheless, whether employers must accommodate attendance problems related to disabilities continues to create issues for employers and give rise to litigation.

Sampler vs. Providence St. Vincent Medical Center

Sampler vs. Providence St. Vincent Medical Center, a case recently decided by the federal Ninth Circuit Court of Appeals, provides further guidance with respect to these issues. In Sampler, Monica Sampler, a neonatal intensive care unit nurse with fibromyalgia (a condition that limits sleep and causes chronic pain), sought an accommodation that would have allowed her an unlimited number of unplanned absences. Sampler basically requested freedom from Providence’s attendance policy, which allowed five unplanned absences per rolling twelve month period. Unplanned absences for family medical leave, jury duty, bereavement leave and other approved bases were not counted, and each unplanned absence, however long, counted as only one occurrence. Even under this generous leave policy, Sampler could not meet her employer’s attendance requirements and was eventually discharged.

The Court’s Holding

To prove a failure to accommodate under the ADA, Sampler had to show that (i) she was a qualified individual with a disability within the meaning of the ADA; (ii) she was a qualified individual able to perform the essential functions of the job either with or without reasonable accommodations; and (iii) she suffered an adverse employment action because of her disability. The Court first found that regular attendance was an essential function of Sampler’s job. Providence had produced a detailed job description identifying attendance and punctuality as essential job functions. Further, Providence was able to demonstrate that its NICU nurses are specialized, that it is hard to find replacements, and that understaffing compromises patient care. In essence, Sampler’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. Based on this showing, the Court concluded that Sampler faced “an insurmountable hurdle” in arguing that regular attendance is not an essential function of the NICU nurse position. Accordingly, because Sampler could not attend work reliably with or without reasonable accommodation, she was not a “qualified” individual with a disability, and therefore she was not protected by the ADA.

Sampler argued that Providence’s generous policy of allowing unplanned absences, plus its tolerance of Sampler’s own past excessive absences, were proof that her regular attendance was not essential. The Court rejected this logic, reasoning that Providence’s past patience and accommodation did not mean it had to tolerate unlimited absences going forward. In addition, Providence’s efforts with Sampler in trying alternative accommodations (such as using a part time schedule with no days back to back and a history of extended leaves not counted towards the attendance policy) showed good faith participation in an interactive process with her. The Court observed: “Ultimately, despite Providence’s patience and accommodations, ‘there was literally nothing in the record to suggest that the future would look different from the past,’ leaving Providence with little choice but to terminate Sampler.”

Sampler also attempted to rely on a controversial opinion previously issued by the Ninth Circuit Court of Appeals, Humphrey vs. Memorial Hospital Association, which held that “regular and predictable attendance is not per se an essential function of all jobs.” The Sampler Court distinguished Humphrey, which involved a mentally disabled medical transcriptionist’s request to work from home, on the basis that transcription can be done from home while patient care cannot. The Court stated: “An accommodation that would allow Sampler to ‘simply…miss work whenever she felt she needed to and apparently for so long as she felt she needed to [a]s a matter of law … [is] not reasonable on its face.” Thus, while the Court did not create a blanket rule making regular attendance an essential function for every job, Providence had met its burden in demonstrating that regular attendance was an essential function of the job at issue in Sampler. Because Providence was not required to excuse Sampler from performing an essential function of her job, the Court ultimately concluded that the discharge was not in violation of the ADA.

(b) Lessens for Employers

The Sampler case offers positive news for employers. When, like Sampler, regular attendance is required, for example so the employee can work with specific co workers, customers, or equipment, and the employee’s absence will have a serious impact that cannot easily be ameliorated, attendance may properly be considered an essential job function. However, as noted above, the Court did not create a blanket rule making regular attendance an essential job function for every job. Thus, it is possible that if the employee’s absence will have little effect or a replacement can be easily found, an employer may be less likely to demonstrate that regular attendance is an essential function of the job. Thus, employers should not assume attendance is an essential job function in every case; rather, they must evaluate each specific case based on factors including 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, employers are well advised to engage in an interactive discussion with employees who are not meeting attendance requirements because of a disability to identify potential accommodations. In essence, employers should consider whether there are other steps they can take to help the employee improve attendance. In some cases, an employer may even consider reassigning the employee to another position for which attendance is not an essential function.

The Sampler decision recognizes the workplace realities of employers trying to meet business objectives that require regular attendance. Employers should feel confident in 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. Employers should take care to establish regular attendance as an essential job function in its written job descriptions and engage in the interactive process before administering discipline to any particular employee. And finally, employers are well advised to consistently follow their own attendance policies. A deviation from such policies may allow an employee to argue that attendance is not an essential function of the job.

For more information please contact a member of our Employment Group or call 208.344.6000.