Favorite Firing: The Absent Nurse in the ICU (Second in a Series)

The Ninth Circuit Court of Appeals, one of the more liberal courts in the nation, declared in Samper v. Providence St. Vincent Medical Center, that attendance is an essential job requirement for some jobs.

This case arose under the Americans with Disabilities Act  (ADA) – a law with the laudable purpose of protecting the job rights of people with disabilities and requiring employers to provide reasonable accommodations to employees with disabilities.

The Facts:  A nurse in a neonatal intensive care unit (NICU) had fibromyalgia and missed a lot of work.  When she was absent, she could not care for the premature babies in the NICU – which was the essential function of her job.

As required by the ADA, the nurse and the hospital discussed accommodation of her inability to comply with the hospital’s attendance policy because of her disability.  The nurse wanted to be given an unspecified number of unplanned absences from her job, and to opt out of complying with the attendance policy at all.

The hospital had few nurses who could back up the employee in question, and said they could not accommodate her request.  The hospital worked with her through several years of poor attendance, and even permitted her to re-schedule her shifts on short notice. 

Finally, however, when even this flexible scheduling did not work to improve the nurse’s attendance, the hospital concluded they needed to move her to another department.

She refused the job transfer, continued to be absent, and even missed the meeting with her supervisor to discuss her attendance. Then she was fired for poor attendance, and she sued the hospital.

The Moral:  Even the liberal Ninth Circuit determined that attendance was an essential job requirement for a nurse.  As the Court said,

“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 Ninth Circuit agreed with its fellow courts.

In essence, the court held that you can’t take care of babies without being where the babies are:

“This at-risk patient population cries out for constant vigilance, team coordination and continuity.”

Good to know.  Employers do not need to “gut” their reasonable attendance policies, according to the Ninth Circuit.

But employers should keep in mind that this case does not provide leeway for employers to always  fire employees for poor attendance.  Some jobs can be done from home, or the scheduling of work time could be more flexible than a nurse’s shift.  A reasonable accommodation in these cases might well require that an employer not follow its attendance policy.

The health care sector is a growing part of the U.S. economy, and aging baby boomers will need more personal services in the years ahead.  These caregiving roles will always require attendance as an essential function of the job. 

By contrast, more and more jobs that are done today in offices will be able to be done from home as technology develops.  Attendance during particular hours will become less important in these jobs.  Even jobs requiring teamwork or customer service may be able to be accomplished through virtual contact, using social media, Skype, or other means of long-distance interaction.

Which of these competing views of the workplace will grow faster? An interesting question for the demographers. Are there any opinions among my readers?

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I’d like to occasionally post about employee terminations that illustrate the state of the modern workplace.  As I wrote in the first “favorite firing” post, if you have any ideas for stories to publish, please email me or leave a comment below.  But please disguise the facts to protect the innocent (and not-so-innocent) unless the situation is well-publicized, and then include a link to support your story.  Only verified stories will be published.