Ninth Circuit Finds “Attendance” to be Essential Function of Nurse’s Job

The Ninth Circuit recently determined that for a neo-natal intensive care unit nurse, attendance is an essential function of the job. The hospital at which the nurse worked had an attendance policy wherein employees could take up to five unplanned absences during a rolling twelve-month period, and unplanned absences related to family medical leave . . . jury duty, bereavement leave and other approved bases are not counted towards this limit, and each absence, however long, counts as only one occurrence.

The nurse worked for the Portland, Oregon hospital for eleven years, and though never full-time, always exceeded the number of allowable absences. The nurse, at the time, claimed that her absences resulted from her divorce, and the hospital accommodated her. She was later counseled again about absences, but this led to no changes. Over the course of several years, she continued to exceed the absence limit and was issued several corrective actions. On the date she was scheduled to have a meeting with the hospital about her continued absences, she was absent. The nurse filed suit, alleging, among other things, violation of the Americans with Disabilities Act due to failure to accommodate. The district court found that the employee was unable to adhere to the hospital’s attendance policy and was thus unqualified for her position as a matter of law, and that she had been accommodated, and that her request to be exempted from the attendance policy was unreasonable.

On appeal by the employee, the Court carefully considered the essential functions of a neo-natal intensive care nurse, and determined that her “regular, predictable presence to perform specialized, life-saving work in a hospital context” was specialized, and this was not a case where “workers were basically fungible with one another, so that it did not matter who was doing the [job] on any particular day; [and the employer] did not follow any fixed policy…” The Court, in affirming the district court’s ruling, held that:

“[the employee’s] performance is predicated on her attendance; 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.”

This case emphasizes the importance of engaging in the interactive process to consider whether accommodations are required and whether accommodations can be provided. It also highlights the importance of having good documentation — from the policy itself, to the corrective actions.