Ninth Circuit Holds Regular Attendance Is Essential Job Function for a Nurse

Some welcome, common sense ADA analysis.  When a job must be performed at the job site, and the employee is not a fungible member of a group of similar workers who can each replace each other, the employer can require regular attendance as a job requirement.

Monika Samper was a neo natal nurse at a Providence Hospital.  She claimed to have Fibromyalgia, which resulted in poor attendance. She violated the attendance policy and was fired.  She wanted essentially a waiver from the policy.

No sale.

It is a “rather common-sense idea . . . that if one is not able to be at work, one cannot be a qualified individual.” Waggoner v. Olin Corp., 169 F.3d 481, 482 (7th Cir. 1999). 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.” Hypes v. First Commerce Corp., 134 F.3d 721, 727 (5th Cir. 1998). Other jobs require face-to-face interaction with clients and other employees. Nowak v. St. Rita High Sch., 142 F.3d 999 (7th Cir. 1998) (teacher); Nesser v. Trans World Airlines, Inc., 160 F.3d 442 (8th Cir. 1998) (airline customer service agent); Tyndall v. Nat’l Educ. Ctrs., 31 F.3d 209 (4th Cir. 1994) (teacher). Yet other jobs require the employee to work with items and equipment that are on site. EEOC v. Yellow Freight Sys., Inc., 253 F.3d 943 (7th Cir. 2001) (en banc) (dockworker); Jovanovic v. In-Sink-Erator, 201 F.3d 894 (7th Cir. 2000) (tool and die maker); Waggoner, 169 F.3d 481 (production worker); Corder v. Lucent Techs., Inc., 162 F.3d 924 (7th Cir. 1998) (telephone customer support); Halperin v. Abacus Tech. Corp., 128 F.3d 191 (4th Cir. 1997) (computer consultant); Rogers v. Int’l Marine Terminals, Inc., 87 F.3d 755 (5th Cir. 1996) (mechanic); Jackson v.Veterans Admin., 22 F.3d 277 (11th Cir. 1994) (housekeeping aide); Carr v. Reno, 23 F.3d 525 (D.C. Cir. 1994) (coding clerk under the Rehabilitation Act); Law v. U.S. Postal Serv., 852 F.2d 1278 (Fed. Cir. 1988) (mail handler under the Rehabilitation Act).

The common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse. This at-risk patient population cries out for constant vigilance, team coordination and continuity. As a NICU nurse, Samper’s job unites the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, faceto-face interaction with patients and their families, and working with medical equipment face interaction with patients and their families, and working with medical equipment. Samper herself admits that her absences sometimes affected “teamwork and cause[d] a hardship for [her] coworkers who must cover for [her].” Similarly, once at work, Samper’s tasks required her to “lift babies, push cribs and isolettes.” More critically, she had to “get up at a moment’s notice to answer alarms [and] . . . [o]ften . . . run to codes.”
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Samper’s performance is predicated on her attendance; reliable, dependable performance requires reliable and dependable attendance. An employer need not provide accommodations that compromise performance quality—to require a hospital to do so could, quite literally, be fatal.

Zing. The case is Samper v. Providence St. Vincent Med. Ctr. and the opinion is here.