Showing up for work: Do courts see it as - Business Management Daily

by Mindy Chapman, Esq.

Finally! A court has figured it out. When disabled employees take leave under the ADA, it?s not always an open-ended ticket to calling in absent. If regular attendance is an essential element of the job, then calling in absent is not a ?reasonable? accommodation ?

Case in Point: Monika, a neonatal intensive care unit (NICU) nurse at an Oregon hospital, suffered from fibromyalgia, a condition that limits her sleep and causes chronic pain. Monika regularly exceeded the number of allowable unplanned absences.

Eventually, the hospital agreed to a highly flexible schedule that allowed her to call in and move her shift when having a bad medical day. Despite this, her attendance record did not improve, so she was discharged.

Monika sued under the ADA, saying the hospital failed to provide her with a ?reasonable accommodation,? as the ADA requires. While the hospital acknowledged that she qualified as ?disabled,? it defended itself by arguing that a free open-ended pass for absences was not a reasonable accommodation for jobs like hers in which physical attendance is an essential element of the job.

NICU nurses can?t do their jobs at home, the hospital argued. If Monika could not be present, she could not perform the essential elements of her job, either with or without an accommodation. Therefore, the hospital argued, she was not a ?qualified individual? protected by the ADA.

Ruling: The court focused its analysis on this key question: ?Just how essential is showing up for work on a predictable basis?? In the case of an NICU nurse, the court concluded, attendance is not only essential, but a matter of life or death. The hospital won. (Samper v. Providence St. Vincent Med. Ctr., 9th Cir., 4/11/12)

3 lessons learned ? without going to court

1. Ask yourself, ?Is showing up essential?? There are many jobs in all industries in which physically coming to work on a predictable basis is essential. Otherwise, the job cannot be done.

2. Include that fact in the job description. Making clear that physical attendance is an essential element of a job will help prevent ADA lawsuits. Review all job descriptions for attendance requirements.

3. Make efforts to provide reasonable accommodations. The court said the hospital made ?Herculean efforts? to accommodate. But Monika asked that her accommodation exempt her from the job?s essential function of regular attendance. This made her an unqualified individual and, therefore, not protected by the ADA.

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Author: Mindy Chapman is an attorney and? president of Mindy Chapman & Associates LLC. She is a master trainer, keynote speaker and co-author of the ABA book, Case Dismissed! Taking Your Harassment Prevention Training to Trial. Sign up to receive her blog postings at BusinessManagementDaily.com/Mindy.

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