Insights

Home > News & Insights > Insights > 9th Circuit Holds That Attendance Is Essential Function Of Neo-Natal Nursing Position

Share this on:   a b j c

9th Circuit Holds That Attendance Is Essential Function Of Neo-Natal Nursing Position

Published by on April 23, 2012

The U.S. Court of Appeals for the 9th Circuit affirmed the entry of summary judgment in favor of a medical center holding that a neo-natal nurse’s request that she be permitted an unspecified number of unplanned absences was not a reasonable accommodation for her disability and regular attendance was an essential function of her neo-natal nursing […]

The U.S. Court of Appeals for the 9th Circuit affirmed the entry of summary judgment in favor of a medical center holding that a neo-natal nurse’s request that she be permitted an unspecified number of unplanned absences was not a reasonable accommodation for her disability and regular attendance was an essential function of her neo-natal nursing position.   More after the break.

Plaintiff was a neo-natal intensive care unit (“NICU”) nurse at a medical center in Oregon.  The medical center’s attendance policy prohibited five unplanned absences during a rolling 12-month period.  During her employment, plaintiff had fibromyalgia, a condition that limited her sleep and caused chronic pain.  Plaintiff exceeded the number of unplanned absence allowed under the medical center attendance policy for several years of her employment despite having many absences that were not counted towards the unplanned absence limit, such as intermittent medical leaves.  In 2006, plaintiff and the medical center agreed to an accommodation under which plaintiff’s two weekly shifts would not be scheduled on consecutive days.  Plaintiff requested as an accommodation that she be exempt from the attendance policy altogether and that she be permitted an unspecified number of unplanned absences.  After continually exceeding the permitted unplanned absences allowed under the medical center policy, Plaintiff was terminated in 2008 for excessive absences and attendance problems.  

Plaintiff filed suit against the medical center alleging, among other claims, a violation of the Americans with Disabilities Act (“ADA”) for failing to provide a reasonable accommodation.  At summary judgment, the medical center presented evidence that NICU nurses have specialized training making it very difficult to find replacements and unplanned absences, resulting in being understaffed, could compromise patient care.   The district court granted summary judgment in favor of the medical center concluding that because plaintiff was unable to adhere to the medical center attendance policy, she was unqualified for her position as a matter of law.  The district court also held that the 2006 work plan was a reasonable accommodation and plaintiff’s request to be exempt from the attendance policy was unreasonable.    

The Court of Appeals affirmed holding that regular attendance is an essential function of a NICU nursing position.  The Court of Appeals stated that as a NICU nurse, plaintiff’s job united “the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, face-to-face interaction with patients and their families, and working with medical equipment.”  The Court of Appeals rejected plaintiff’s argument that her attendance was not an essential function of her position because her absences had exceeded those permitted under the attendance policy in past years without repercussion.  The Court of Appeals further held that plaintiff’s requested accommodation of being exempt from the attendance policy and allowed an unspecified number of unplanned absences was unreasonable as it would allow plaintiff to miss work whenever she felt she needed to and apparently for so long as she felt she need to.          

To read the full decision, click here.

Topics:

Share:   a b j c