How Essential Is Showing Up For Work On A Predictable Basis Under The Americans With Disabilities Act?

Author:Mr Jonathan O'Connell
Profession:Holland & Knight

Jonathan O'Connell is an Associate in our Northern Virginia office.

The Americans with Disabilities Act (ADA) and its related amendments affords protection to disabled employees who are qualified and able to perform the essential functions of a job with or without a reasonable accommodation. In some instances, a reasonable accommodation may include providing an employee with intermittent or unscheduled unpaid leave.1 A recent decision from the United States Court of Appeals for the Ninth Circuit provides additional guidance to employers regarding their obligations for providing such accommodations under the ADA.


In Samper v. Providence St. Vincent Medical Center, Case. No. 10-35811 (9th Cir. 2012), plaintiff Monika Samper was employed by Providence St. Vincent Medical Center (the "hospital") as a neo-natal intensive care nurse. During the course of Samper's employment, she continually exceeded the number of unplanned absences permitted by the hospital's policy due to her fibromyalgia, a condition that limits sleep and causes chronic pain. Although the hospital was flexible in accommodating her unplanned absences, Samper's employment was ultimately terminated. Subsequently, she filed suit under the ADA, alleging that the hospital failed to provide her with a reasonable accommodation. The U.S. District Court for the District of Oregon granted summary judgment in favor of the hospital and Samper appealed the lower court's decision to the Ninth Circuit.


In analyzing Samper's ADA claim, the Ninth Circuit began by recognizing the basic premise that for many jobs, on-site presence is necessary in order for an individual to be "qualified." Continuing its analysis, the court recognized the specialized training neo-natal nurses must possess, as well as the fact that the at-risk infant patient population "cries out for constant vigilance, team coordination and continuity." The court also noted that the neo-natal nurse position description listed "Attendance" and "Punctuality" as essential functions of the job. In affirming the district court's finding that Samper was unqualified for her position as a matter of law, the court concluded that given the nature of the neo-natal intensive care nurse position, "[a]n employer need not provide accommodations that comprise performance quality - to require a hospital to do so could, quite literally, be fatal." Importantly, however, in reaching its conclusion the court also acknowledged that...

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