Samper v. Providence St. Vincent: Court Holds that Regular Attendance at Work Is an Essential Function for NICU Nurse

In Samper v. Providence St. Vincent, 675 F.3d 1233 (9th Cir., 4/11/12) the Ninth Circuit Court of Appeals held that regular attendance is an essential function of an NICU nurse's duties for purposes of the Americans with Disabilities Act.  

Monika Samper, a neo-natal intensive care unit (“NICU”) nurse, sought an accommodation from her employer [to accommodate her fibromyalgia], Providence St. Vincent (“Providence”), that would have allowed her an unspecified number of unplanned absences from her job. She wanted to opt out of Providence’s attendance policy, which sanctioned five unplanned absences of unlimited duration as well as other permitted absences. Samper appeals the district court’s summary judgment in favor of Providence on her reasonable accommodation claim under the Americans with Disabilities Act (“ADA”). Because regular attendance is an essential function of a neo-natal nursing position at Providence, we affirm.  

675 F.3d at 1235.  

The Court began by noting that understaffing could compromise patient care, then described Providence's attendance policy: 

Nonetheless, striking a balance between the needs of patients and employees, Providence's attendance policy allows its employees to take up to five unplanned absences during a rolling twelve-month period. In addition, "[u]nplanned absences related to family medical leave ... jury duty, bereavement leave and other approved bases are not counted" towards this limit, and each absence, however long, counts as only one occurrence.  Samper challenges the application of this generous absence policy to her circumstances. 

Ibid.  The Court reviewed Samper's long history of missing time from work for a variety of reasons, including health and personal reasons.  The Court's "essential functions" analysis is fairly brief and direct: Many jobs require regular attendance; a few do not.  NICU nurse is one of those jobs that cannot be done from a remote location.  Regular attendance is even more essential for a NICU nurse than it is for most other jobs.  Id. at 1237-1239.  

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.

Id. at 1241.  

The opinion is available here.