Jonathan O'Connell is an Associate in our Northern Virginia office.
The Americans with Disabilities Act (ADA) and its related amendments affords protection to disabled employees who are qualified and able to perform the essential functions of a job with or without a reasonable accommodation. In some instances, a reasonable accommodation may include providing an employee with intermittent or unscheduled unpaid leave.1 A recent decision from the United States Court of Appeals for the Ninth Circuit provides additional guidance to employers regarding their obligations for providing such accommodations under the ADA.
In Samper v. Providence St. Vincent Medical Center, Case. No. 10-35811 (9th Cir. 2012), plaintiff Monika Samper was employed by Providence St. Vincent Medical Center (the "hospital") as a neo-natal intensive care nurse. During the course of Samper's employment, she continually exceeded the number of unplanned absences permitted by the hospital's policy due to her fibromyalgia, a condition that limits sleep and causes chronic pain. Although the hospital was flexible in accommodating her unplanned absences, Samper's employment was ultimately terminated. Subsequently, she filed suit under the ADA, alleging that the hospital failed to provide her with a reasonable accommodation. The U.S. District Court for the District of Oregon granted summary judgment in favor of the hospital and Samper appealed the lower court's decision to the Ninth Circuit.
In analyzing Samper's ADA claim, the Ninth Circuit began by recognizing the basic premise that for many jobs, on-site presence is necessary in order for an individual to be "qualified." Continuing its analysis, the court recognized the specialized training neo-natal nurses must possess, as well as the fact that the at-risk infant patient population "cries out for constant vigilance, team coordination and continuity." The court also noted that the neo-natal nurse position description listed "Attendance" and "Punctuality" as essential functions of the job. In affirming the district court's finding that Samper was unqualified for her position as a matter of law, the court concluded that given the nature of the neo-natal intensive care nurse position, "[a]n employer need not provide accommodations that comprise performance quality - to require a hospital to do so could, quite literally, be fatal." Importantly, however, in reaching its conclusion the court also acknowledged that "regular attendance is not necessary for all jobs ... when on-site presence is not required for all jobs."
What the Decision Means for Employers
The ADA was amended in 2008 to broaden the definition of "disability" and increase the number of employees who may qualify for protection under the Act. This legislative change means that it will be much more difficult for an employer to show that an individual is not "disabled," and means that employers will need to focus more on ensuring that they engage in an "interactive process" to determine whether a reasonable accommodation is available. Statistics show that the number of EEOC charges alleging disability discrimination has risen in recent years.
The Samper case demonstrates that under the right circumstances, an employer can still prove that an employee is unqualified for ADA protection despite the expanded definition of "disability" ushered in by the 2008 amendments. To maximize the likelihood of proving that certain functions of positions are essential, employers should review their existing job descriptions in order to ensure that such documents accurately reflect the essential functions of the positions. In Samper, the court found it significant that the employer specifically listed "Attendance" and "Punctuality" as essential functions of the neo-natal intensive care nurse position in determining that the plaintiff's failure to meet those criteria made her unqualified and not eligible for ADA protection. This does not mean that calling a function "essential" in a job description makes it so for ADA purposes, but courts frequently look to such employer-based determinations in assessing failure to accommodate claims, and the absence of such language may make it much harder to show the function is truly essential.
Disability Discrimination Claims Are on the Rise
In order to be prepared to handle a disability discrimination claim, employers should review their equal employment policies and procedures for responding to employees who request accommodations for potential disabilities. Although Samper shows that employers still may be able to avoid an obligation to accommodate altogether in some cases, the number of cases where an employer will need to demonstrate it has reasonably accommodated the employee has increased. Employers need to ensure that they have a specific process in place to engage in an "interactive process" with disabled employees who request reasonable accommodation to determine whether a reasonable accommodation exists that will allow the employee to perform the essential functions of the job, or whether no such accommodation exists. Failure to engage in such an interactive process may lead to a finding that the employer failed to meet its obligations under the ADA.
1 Employers should also be aware that the Family Medical Leave Act (FMLA) and corresponding state statutes, also entitle eligible employees to take unpaid, job-protected leave for specified family and medical reasons with continuation of group health insurance coverage.
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