Court Holds that Attendance is an Essential Function of the Job for a Neonatal Nurse, Making the Law of Reasonable Accommodation Unnecessarily Unreasonable

Perhaps this case is an example of bad facts make bad law, or perhaps this panel was just kinda testy about the importance of attendance at work. Ms. Samper was a nurse who worked in the neo-natal intensive care unit of defendant Providence St. Vincent Medical Center. Due to an admitted disability, she needed some flexibility in attendance, meaning that she needed more sick days than was permitted under the hospital’s policy. Before reading this opinion, and given the law in the Ninth Circuit, including the venerable case of Humphrey v. Memorial Hospitals, 239 F.3d 1128 (2001) (strongly worded opinion requiring a hospital to provide a reasonable accommodation to a medical transcriptionist including flexibility in an attendance policy) , I had no doubt that flexibility in an attendance policy at a hospital would be just the type of reasonable accommodation that the Ninth Circuit would uphold. Boy was I in for a surprise.

Ms. Samper, like Ms. Humphrey, suffered from a disability that made accommodations in the attendance policy a requirement for her to work. Once at work, there was absolutely no evidence that her performance suffered in any way. This type of accommodation seemed just what the doctor ordered. Not so, says the Ninth Circuit, making some very bad law in the process.

According to the Ninth Circuit, regular attendance is an “essential function” of the job of a NICU nurse. Thus, since Ms. Samper’s disability impinges upon her attendance, the hospital need not accommodate her. The Ninth Circuit reached this opinion by relying upon the hospital’s job description and supervisor say so (isn’t that convincing!). The Ninth Circuit made fun of Ms. Samper’s argument that, since all employees are permitted sick days and vacation and the hospital is able to accommodate this, it ought to be able to accommodate further absences due to Ms. Samper’s disability.

Interestingly, there is absolutely no evidence that the care actually provided to the babies in the unit was compromised due to scheduling and/or absences by Ms. Samper or any of the other nurses. Indeed, these are highly trained professionals. The hospital states that understaffing compromises hospital care, but in no way suggested the hospital has actually ever suffered from understaffing.

This case starts by announcing, “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”. Perhaps this result was reached because the record was bare on the side of the plaintiff’s evidence. Perhaps this result was reached because there is really, truly something different about neo-natal nursing. Whether this is true or not, the Ninth Circuit has just made a mess of the law of reasonable accommodation, and looked to be a bit glib about the facts. Based on this case, do we now know that attendance is not an essential function for a medical transcriptionist, but it is for a neo-natal nurse? Or do we now know that under the facts submitted to the court in Ms. Samper’s case, attendance was an essential function, but it may not be for a different hospital, a different person, a different department, a different disability/reasonable accommodation, and on a different record? All I know is that Samper v. Providence St. Vincent Medical Center, No. 10-35811, Ninth Circuit Court of Appeals (April 11, 2012), is bad law, neither well-reasoned nor providing specific enough guidance to employers, employees and lower courts.

Jody LeWitter
May 7, 2012