This case tests the limits of an employer's attendance
policy. Just how essential is showing up for work on a predictable
basis? In the case of a neo-natal intensive care nurse, we conclude
that attendance really is essential.
The Samper plaintiff, a neonatal nurse in the
defendant-hospital's Neonatal Intensive Care Unit (NICU),
suffered from fibromyalgia which, she claimed, limited her sleep
and caused her chronic pain. The nurse asked the hospital to
accommodate this disability by allowing her to miss work whenever
she was having a "bad day." After years of
unacceptable absenteeism what the Court described as the
hospital's "Herculean efforts" to accommodate the
plaintiff, she was terminated. She sued the hospital,
claiming that it failed to provide her with a reasonable
accommodation for her disability.
The hospital did not dispute that the plaintiff was disabled,
that she had the requisite technical skills for the job, or that
she suffered an adverse employment action. The hospital
argued, however, that although the plaintiff possessed the
technical qualifications of the job, she was unable to perform the
essential function of showing up for work.
The burden was on the hospital to establish which functions were
"essential" to the job. Arguing that the hospital
did not meet its burden to show that attendance was an essential
function of the job, the plaintiff cited numerous cases for the
proposition that regular attendance was not required. For
example, she cited to cases where "workers were basically
fungible with one another, so that it did not matter who was doing
the job on any particular day," (dockworkers) as well as cases
where the work could be performed remotely (medical
The Court easily distinguished those cases, however, from cases
like this one, where irregular attendance compromises essential
functions. Indeed, the Court stated:
To imagine a NICU facility, responsible for the emergency
care of infants, operating effectively in such a manner, stretches
the notion of accommodation beyond any reasonable limit. An
accommodation that would allow [the plaintiff] 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. Internal citations
Although the Court found in favor of the defendant-hospital, and
held that regular attendance was an essential function of Ms.
Samper's job, it left open the possibility that regular
attendance may not be an essential function for other jobs or jobs
in other industries. Nevertheless, the Court was crystal
clear that an accommodation is not reasonable if it seeks an
exemption from an essential function.
The case is noteworthy for several reasons. First, while
underscoring that the burden remains on the defendant to prove
which functions of the job are "essential" functions, the
case shows that in certain types of jobs an employer can make a
compelling case that attendance is an essential function. Second,
the case is a good illustration of how an employer's initial
efforts in "going the extra mile" to accommodate an
employee's disability can redound to the employer's
advantage when it ultimately decides that the disability can no
longer be accommodated.
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I was recently reviewing the Department of Fair Employment and Housing's Annual Report (don't you wish you were me?), and saw that the DFEH received 17,632 complaints of employment discrimination in 2014. Of those, 12,344 (70%) alleged retaliation.