Ninth Circuit Rules Unlimited Absences Constitute Unreasonable Accommodation for Intensive Care Nurse
Last week, the Ninth Circuit Court of Appeals issued a favorable decision for healthcare employers regarding reasonable accommodation under the Americans with Disabilities Act, recognizing that regular attendance is an essential function of an intensive care unit nurse’s job. In Samper v. Providence St. Vincent Medical Center, a neo-natal intensive care (“NICU”) nurse suffering from fibromyalgia argued that the hospital failed to reasonably accommodate her condition by allowing her unlimited absences. The hospital’s leave of absence policy was already generous, providing every NICU nurse with five unplanned absences during any 12-month period. The district court granted summary judgment in favor of the hospital, holding that exempting the nurse from this absence policy was unreasonable.
The Ninth Circuit affirmed, finding that regular attendance was an essential function of the plaintiff’s job because: (1) continuity of service was necessary for patient care and coordinated teamwork; (2) NICU nurses have specialized training and it is difficult to find replacements; and (3) the life-saving work that NICU nurses perform makes attendance “even more essential” than at other jobs. The court distinguished NICU nurses from other occupations, like medical transcriptionists, who rarely have direct contact with patients. Unlike medical transcriptionists, NICU nurses are on the front lines providing life or death patient care. The court noted, “reliable, dependable performance requires reliable and dependable attendance. An employer need not provide accommodations that compromise performance quality—to require a hospital to do so could, quite literally, be fatal.”
Importantly, the crux of the Ninth Circuit’s decision focused on the fact that the plaintiff was attempting to flout the hospital’s absence policy by coming and going as she pleased, without regard to any limit or notice regarding absences. By focusing on the unlimited number of absences that the plaintiff requested, the court left open the possibility that allowing an employee a specific number of additional unplanned absences might be reasonable in certain circumstances. Similarly, it remains unclear if the court would consider unlimited planned absences reasonable in certain circumstances because planned absences would allow an employer more time to find coverage for the absent employee.
In light of Samper, healthcare employers evaluating additional absences as a potential reasonable accommodation for an employee with a disability should carefully review the requesting employee’s specialized skill set and amount of patient interaction, as well as the extent to which patient care would be compromised if the employer were to allow additional absences.