9th Circuit Follows 4th, 6th, 7th, 8th, 11th, DC and Federal Circuits in Finding the Relaxation of an Attendance Policy is Not Always a Reasonable Accommodation

By: Fey Epling

 In Samper v. Providence St Vincent Medical Ctr 2012 DJDAR 4559 (9th Cir. 04/11/2012), the plaintiff, a part-time neonatal intensive care unit (“NICU”) nurse sought an accommodation from her employer, Providence St. Vincent Medical Center, that would allow her to opt out of its attendance policy which permitted five unplanned absences in a rolling twelve month period, in addition to other scheduled absences.  When Providence refused the request, Samper sued for failure to accommodate her disability (fibromyalgia) in the federal district court for the District of Oregon, which granted summary judgment for the employer.  The 9th Circuit affirmed, citing to its many sister courts, finding that “[t]he commonsense notion that onsite regular attendance is an essential job function could hardly be more illustrative than in the context of a neonatal nurse.”  The 9th Circuit provided some guidance and reassurance to employers in distinguishing as “an unusual case” Humphrey v. Memorial Hosps. Ass’n., in which the court stated, “regular and predictable attendance is not per se an essential function of all jobs.”

The Samper court does not, however, grant employers carte blanche to refuse similar accommodations in all situations, making clear that the inquiry remains highly fact-specific.  Employers should note the court’s favorable discussion of  Providence’s long history of accommodations and interactive processes with the plaintiff prior to her termination.