Intensive Care Nurse: Regular Attendance and the ADA

In the case of a neo-natal intensive care nurse, regular attendance really is an essential function of the job.

On April 11, 2012, the Ninth Circuit Court of Appeals rejected an Americans With Disabilities Act lawsuit brought by a nurse with fibromyalgia who requested as a “reasonable accommodation” to opt out of the hospital’s attendance policy that sanctioned five unplanned absences of unlimited duration following a number of excused absences.

Samper v. Providence St.Vincent.

Samper obtained intermittent medical leaves that did not count as unexcused absences under the attendance policy. Although none of these leaves counted towards her unplanned attendance limit, despite ongoing accommodation, Samper was issued a corrective action notice for seven unplanned absences over the previous twelve-month period, some of several days in length.

The Court found that it is a “rather common-sense idea . . . that if one is not able to be at work, one cannot be a qualified individual… Both before and since the passage of the ADA, a majority of circuits have endorsed the proposition that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions. Attendance may be necessary for a variety of reasons. Sometimes, it is required simply because the employee must work as ‘part of a team….’ Other jobs require face-to-face interaction with clients and other employees.”