Does an Employer Violate the ADA by Requiring Regular Attendance?

The U.S. Court of Appeals for the Ninth Circuit recently came out with a decision about whether attendance is an essential function of the job, and when an employer can terminate an employee for poor attendance even if the absences are caused by a "disability" within the meaning of the Americans with Disabilities Act. *The Ninth Circuit hears appeals from federal district courts in the states of Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, Oregon and Washington, and the territories of Guam and the Northern Mariana Islands. Its headquarters is in San Francisco.

The plaintiff in the case was a nurse in a neonatal intensive care unit at a hospital in Oregon.   The plaintiff suffered from fibromyalgia and missed a lot of work as a result.  After many years the hospital told her she would have to move to another department where her attendance wasn't as critical.  Plaintiff refused.  Eventually, she was fired for poor attendance.

Plaintiff sued the hospital under the ADA, claiming that she should have been allowed to stay in her position and "opt out" of the attendance policy.

The Court held that regular attendance is usually considered an "essential function of the job," which means that an employer can usually require it.  However, regular attendance is not an essential function in every case.  Some jobs can be performed from home or on flexible schedules – examples include computer programming, blogging, etc.

In these circumstances, telecommuting would help the employee perform the essential functions of the job and most courts would say that the employer has to consider allowing telecommuting as a reasonable accommodation.

But many jobs cannot be performed from home.  These jobs include positions where the job requires face time, personal meetings or interaction, or where the employee must work with on-site items or equipment.

The Ninth Circuit held that the nurse’s job duties require her to work as part of a team, have face time with supervisors, other staff, patients and family.  In addition, the Ninth Circuit held that the nurse’s job involved sophisticated equipment that was only available at the hospital facility.

The take home point is that being able to show up to work is a major part of your job.  An employer has a duty to accommodate your disability, but not every accommodation is reasonable.  If you have any questions, or feel that you are being discriminated against on the basis of disability, please contact us.