Leave, including leave beyond an employer’s permitted number of days off, is a form of reasonable accommodation under the ADA. But, indefinite leave is not. If attendance is an essential part of the job, then calling in absent on a regular basis, may not be “reasonable” and cause an undue hardship on the employer.
A neonatal intensive care nurse at a hospital, with fibromyalgia (a condition that limits sleep and causes chronic pain) regularly exceeded the number of allowable unplanned absences. The hospital agreed to a highly flexible schedule that allowed her to call in and move her shift whenever she was having a bad medical day. Despite this accommodation, her attendance record did not improve and she was ultimately discharged.
The nurse sued the hospital under the ADA for failing to provide her with a “reasonable accommodation.”
Just how essential is showing up for work on a predictable basis? Presumably, nurses can’t do their job at home and need to be present in the hospital to perform the key function of caring for sick patients. In this case, the court concluded, attendance is not only essential but a matter of life or death, literally. The hospital won. The hospital made “Herculean efforts” to accommodate Samper. However, she essentially asked that her reasonable accommodation be an exemption of one of her essential functions, regular attendance. This made Samper an unqualified individual and, therefore, not protected by the ADA.
When reviewing the essential job duties for your employees, ask yourself, “Is showing up essential?” There are many jobs, in all industries, in which physically coming to work on a predictable basis is essential; otherwise, the job can’t be done. If that’s the case, make it clear in the job description that physical attendance is an essential element of a job. It’s also advisable that you review attendance policies and make sure flexibility is built in. If you need more information, contact Springboard today.
This information should not be construed as “legal advice” for a particular set of facts or circumstances. It is intended only to be a practical guide for participants familiar with this subject. Users should seek appropriate legal advice tailored to address their specific situation.