Woody Allen once said, "80 percent of
success is showing up." So true, so true!
The U.S. Court of Appeals for the Ninth Circuit* came out
recently with a
great decision on when "showing up" -- also known as
"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
*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 (let's call her "Miss Ratched")
was a nurse in a neonatal intensive care unit at a hospital in Oregon. As you
probably know, the NICU is the part of the hospital where they take care of
little babies -- and I really do mean little -- usually severely
premature, and often having other serious health conditions. (And I'm not
talking "FMLA-serious," which includes hangnails, the sniffles, and ennui.
I mean the real thing.)
Anyway, Miss Ratched had fibromyalgia
and missed work a lot. The hospital -- we'll call it St. Patience for
obvious reasons -- tried to accommodate her for years but eventually gave up.
They finally told her she would have to move to another department where her
attendance wasn't as critical. She said no. In my favorite part of the case,
the hospital scheduled a meeting with her to discuss her attendance, and she
was absent from the meeting. LOL! Eventually St. Patience fired her
for bad attendance.
Pretty brave for an employer in the Ninth Circuit. Maybe
our hospital's pseudonym should have been "St. George the
Miss Ratched sued St. Patience under the ADA, claiming
that she should have been allowed to stay in the NICU and "opt out"
of the attendance policy.
And the Ninth Circuit sided with the
(OK, sorry, Ninth Circuit. I'm done teasing you now.) The
decision actually provides an excellent discussion about when absence from the
workplace can be "accommodated" and when it cannot.
Regular attendance is usually considered an
"essential function of the job," which means that an employer can
usually require it. But it's not an essential function in every case. Some jobs
can be performed pretty well at home or on flexible schedules -- for
example, writing a blog, and other jobs that entail a lot of computer or
If so, and if telecommuting would help the employee
perform the essential functions of the job, then most courts would say that the
employer has to consider allowing it as a reasonable accommodation.
But there are a lot of other jobs that really can't
be performed at home, duh:
*Where the employee must work "as part
of a team."
*Where the job requires "face time"
with clients or co-workers.
*Where the employee must work with items or
equipment that are on-site.
The Ninth Circuit said that Miss Ratched's job fell into
all three of these categories. The NICU staff had to work as a team. Face time
with supervisors, other staff, the babies, and the parents was an important
part of the job, too. And, of course, NICUs are full of sophisticated equipment
with beepers and flashing lights and such. In addition, the Ninth Circuit
found, the nurse's job was not "fungible" -- working as an NICU nurse
required training and expertise that was not readily available, even among the
nursing population. That meant that it was often hard to find qualified
substitutes for Miss Ratched when she called in sick, affecting the quality of
the little ones' care. Not to mention the cohesiveness of the "team."
The court also found that St. Patience had gone to
extraordinary lengths to work things out with Miss Ratched before it terminated
her employment. And, even though the hospital already had a fairly generous
time-off policy, the court said, that didn't mean it had to grant even more
time off to Miss Ratched.
So, when you have an employee who wants time off or to be
able to work from home as a reasonable accommodation, you could do a lot worse
than starting with a look at this case. Even if you live in Illinois or New
Hampshire or Alabama. Eighty percent of success really is showing up.
Visit the Employment and
Labor Law Insider for additional insights from Robin Shea, a partner with the national labor and
employment law firm Constangy, Brooks & Smith, LLP.
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