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

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.

Revised guidelines for both employers and veterans regarding the Americans with Disabilities Act

On February 28, 2012, the U.S. Equal Employment Opportunity Commission (“EEOC”) announced the publication of revised guidelines for both employers and veterans regarding the Americans with Disabilities Act (the “ADA”).  The new publications address changes to the ADA’s definition of the term “disability”, which was broadened under the ADA Amendments Act of 2008 to include, among other conditions, a wider range of military service related disabilities such as traumatic brain injury and post-traumatic stress disorder.  Before the amendments, the ADA’s definition of the term “disability” had been construed narrowly, significantly limiting the law’s protections.

With large numbers of veterans returning from service in Iraq and Afghanistan, attention is now being focused on veterans’ challenges in obtaining and successfully maintaining civil employment.  According to the EEOC, approximately “25 percent of recent veterans report having a service-connected disability, as compared to about 13 percent of all veterans.”  And, as reported by the Bureau of Labor Statistics in October, unemployment for post-9/11 veterans hovers around 12 percent, which is more than three percentage points higher than the overall unemployment rate.  The EEOC wants “veterans with disabilities to know that the EEOC has resources to assist them as they transition to, or move within the civilian workforce,” said EEOC Chair Jacqueline A. Berrien.

The Guide for Veterans answers questions about an injured veteran’s rights when returning to civilian life and explains the kind of work adjustments or reasonable accommodations that may help veterans be successful in the workforce.  It explains that, in addition to the ADA protections for disabilities, the Uniformed Services Employment and Reemployment Rights Act (“USERRA”) protects veterans from discrimination on the basis of their military status.

The Guide for Employers explains how the ADA applies to recruiting, hiring, and accommodating veterans with disabilities and differentiates the protections available to veterans with disabilities under the ADA from the protection afforded to veterans under USERRA from discrimination in employment.  The Employer’s guide provides information on additional laws and regulations that employers may find useful if they decide to make recruiting and hiring veterans with disabilities a priority.

Both guides may be found at the EEOC website at:

http://www.eeoc.gov/eeoc/publications/ada_veterans.cfm http://www.eeoc.gov/eeoc/publications/ada_veterans_employers.cfm

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