Is regular attendance an essential job function?


Monika, a part-time neonatal care nurse who worked in your medical center, has fibromyalgia. As a result, she regularly exceeded the unscheduled absences permitted full-time employees. Monika asked for an accommodation that would have allowed her an unspecified number of unplanned absences from her job. She wanted to opt out of the center’s attendance policy, which sanctions five unplanned absences of unlimited duration as well as other permitted absences. Ultimately, she was discharged for excessive unplanned absences and general problems with attendance. Asserting that regular attendance was not an essential function of her position, Monika filed a lawsuit against the medical center alleging a failure to accommodate under the Americans with Disabilities Act (ADA). Will she be successful?


No. In a case with similar facts, the Ninth Circuit rejected the employee’s contention that regular attendance was not an essential function of the position. According to the court, both before and since the passage of the ADA, a majority of circuits have endorsed the proposition that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions. The “common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neonatal nurse,” the court stated. The court also observed that the nurse’s written job description required strict compliance to the attendance policy and listed “punctuality” and “attendance” as essential job functions.

By asserting that her proposed modification of the attendance policy was a reasonable accommodation, and never quantifying the number of unplanned absences she required, the nurse effectively sought to miss work whenever she wanted. The employer was not obliged to give the employee a pass for every unplanned absence, noted the court. Her performance was predicated on her attendance, and reliable, dependable performance required reliable, dependable attendance. The employer did not have to provide accommodations that compromised performance quality — and to require a hospital to do so could be fatal, the court concluded.

Source: Samper v. Providence St. Vincent Medical Center (9thCir 2012) No 10-35811.

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