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Friday, April 20, 2012

How Essential is Showing up for Work

By Tommy Eden, Attorney

Monika Samper, a neo-natal intensive care unit (“NICU”) nurse with 11 years of service, sought an accommodation from her employer, Providence St. Vincent in Portland, Oregon, that would have allowed her an unspecified number of unplanned absences from her job. Samper had fibromyalgia, a condition that limited her sleep and caused her chronic pain. She wanted to opt out of Providence’s attendance policy, which sanctioned five unplanned absences (during a rolling 12 month period) of unlimited duration as well as other permitted absences.

After a negative performance review for excessive absenteeism Samper was placed on a work improvement plan. Her manager asked to meet with her and a leave-of-absence specialist to address Samper’s chronic attendance problems. At the meeting, Providence agreed to a highly flexible accommodation: Samper was allowed to call in when having a bad day, and move her shift to another day in the week. Providence’s flexibility, however, yielded no results.

Samper again met with management in which it agreed to yet another accommodation in that her two shifts-per-week would not be scheduled on consecutive days. Again, despite hoped for improvement, Samper received a verbal warning at the end of the year because of her attendance. Samper responded by seeking the above described exemption from the attendance policy altogether. Providence then informed Samper that her part-time position would cease to exist and that she could transfer to another position or face termination. Samper responded by making inappropriate comments in the presence of patients and was issued a corrective memorandum and later fired for excessive absenteeism.

According to the testimony of the NICU charge nurse, absences among NICU staff can potentially jeopardize patient care.

The matter eventually ended up before the 9th Circuit Court of Appeals which held on April 11, 2012 that while Sample was disabled under the ADA, because regular attendance is an essential function of the NICU nurse position, she could prove one of the essential elements of her case. The court said in Samper v. Providence St. Vincent Med. Ctr., “allowing the nurse's absences would compromise performance quality in a way that could be fatal to patients in the neo-natal intensive care unit where she worked.” Accordingly, her absenteeism firing did not violate the ADA.

Common Sense Counsel: Providence Hospital did the following things right that allowed it to win this ADA reasonable accommodation case: 1) job description listed regular and predicable attendance as an essential job function; 2) used written disciplinary warnings; 3) scheduled interactive reasonable accommodation meetings, and 4) showed patience during which time the employee acted inappropriately in front of patients.

Tommy Eden is a Lee County Native, an attorney with the local office of Capell & Howard, P.C., a member of the ABA Section of Labor and Employment Law and serves on the Board of Directors for the East Alabama SHRM Chapter. He can be contacted at or 334-501-1540 or Alabama Immigration updates at