Can an Employee Opt-Out of an Attendance Policy as a Reasonable Accommodation under ADA?

On April 11, 2012, the United States Court of Appeals for the 9th Circuit (which includes California) issued another employer friendly decision. In Samper v. Providence St. Vincent (9th Cir. 10-35811 4/11/12), the limits of an employer’s attendance policy were tested under the Americans with Disabilities Act. The question asked was


The answer in the case of a neo-natal intensive care nurse was that attendance really is essential.

In the Samper case, the employee was a neo-natal intensive care unit nurse. She sought an accommodation from her employer to allow her an unspecified number of unplanned absences from her job. Specifically, she wanted to opt out of the employer’s attendance policy, which permitted five unplanned absences of unlimited hair loss duration as well as other permitted absences. The court ruled that under the ADA regular attendance was an essential function of this neo-natal nursing position (view the decision).

Of course, attendance is not essential to all jobs and employers should use caution and legal counsel in determining what constitutes the essential job functions of a specific position under ADA.

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