Bay Area Employment Lawyer Blog
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.