Attendance policy can be enforced without violating employee’s ADA rights

9th Circuit analyzes when regular attendance is an essential job function

Accommodating employees with disabilities, as required by the Americans with Disabilities Act (ADA), when the accommodation involves frequent unscheduled absences from work poses a difficult dilemma for employers. The employee contends her condition requires an exemption from the attendance policy, while the employer finds unplanned absences disruptive to business.

Recently, the Equal Employment Opportunity Commission has taken a hard line on attendance policies that result in automatic termination of disabled employees who exceed the maximum number of days off allowed (see “EEOC scrutinizes blanket policies for ADA violations"). And with the expansion of conditions covered by the ADA, more employers are confronting the problem of whether attendance policy exemptions constitute a “reasonable accommodation” under the law.

Trinity of Requirements

The plaintiff in the case, Monika Samper, regularly exceeded the five unplanned absences per year permitted under the hospital’s policy. When she was diagnosed with fibromyalgia in 2005, Providence agreed to allow her to call in when she felt she could not come to work and move her shift to another day. When her attendance problems continued, she requested an exemption from the attendance policy. She was eventually fired and filed suit against the hospital alleging a violation of the ADA. The trial judge granted summary judgment to Providence, and the 9th Circuit upheld that ruling.

Senior Editor

Mary Swanton

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