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Regular Attendance An Essential Job Function For NICU Nurses Under ADA

A neonatal intensive care unit (NICU) nurse in Oregon who suffered from fibromyalgia was fired after accumulating too many absences, in violation of her employer's limit of five unplanned absences per year. The NICU nurse sued her employer for failing to accommodate her disability as required by the Americans with Disabilities Act (ADA).

The hospital argued that the NICU nurse's regular attendance was "an essential job function" and the Court of Appeals for the Ninth Circuit (which includes California) agreed. The requirements of being a NICU nurse, including face-to-face interaction with patients, their families and other medical professionals, as well as the danger of substandard care when the NICU is understaffed, were cited by the Court as reasons why regular attendance was essential.

The Americans with Disabilities Act protects an employee from an adverse employment action, like termination, if:

  • The employee is disabled within the meaning of the Act, and
  • The employee is qualified and able to perform the essential job functions of the position with or without reasonable accommodation

By finding regular attendance to be an essential job function of a NICU nurse, and based on the attempts to accommodate the nurse's disability that did not improve her attendance, the Court held that she was not qualified to be a NICU nurse and the protections of the ADA did not apply.

Regular attendance is not an essential job function of all positions, particularly those that can be completed off-site. The Court noted that those who have jobs that allow for flexible scheduling, telecommuting or working from home would not be excluded from the protections of the ADA based on attendance requirements.

Source: Court of Appeals for the Ninth Circuit, "Samper v. Providence St. Vincent Medical Center," April 11, 2012

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