When the ADA first was enacted back in 1990 and went into effect in 1992, the Internet was just getting started. Back then, it was pretty obvious to everyone that an essential function of the job must mean showing up for it. Since then, technology has evolved quite a bit so now many people can do their work from just about anywhere. Therefore, whether attendance is an essential function of the job is now a case-by-case decision. How does one go about figuring out whether attendance is an essential function of the job? In my opinion, the leading case on this issue is the case of Samper v. Providence St. Vincent Medical Center, 675 F.3d 1233 (9th Cir. 2012). In this case, a neonatal nurse had fibromyalgia (a rather hard condition for physicians and patients to get a handle on and one that can limit effective sleep and which has as one of its components chronic pain/nerve pain throughout the body). As a result of her fibromyalgia and how it affected her, Samper was unable to regularly come to work in accordance with the employer’s attendance policy. Eventually, she was discharged for several reasons, including having seven absences in the 12 month period as well as a general problems with attendance. She then filed suit alleging violation of the ADA.
In affirming summary judgment for the employer, the Ninth Circuit held that regular attendance is an essential function of the job where the job requires attendance. The court goes on to give some great preventive law tips as to how you could know when that job requires attendance. A job requires attendance according to Samper, where the employee must work as part of the team, the job requires face-to-face interaction with clients and other employees, or the job requires the employee to work with items and equipment that are on site. With respect to Samper, the Ninth Circuit said that all these requirements were satisfied considering the nature of being a neonatal nurse and the stakes involved for the hospital’s patients when the hospital is not staffed adequately.
A recent case that follows Samper is Mecca v. Florida Health Services Center, Inc., 2014 WL 408431 (M.D. Fla. February 3, 2014). In this case, the plaintiff was employed as a peripherally inserted central catheter nurse. Such a nurse inserts a peripherally inserted central catheter line into patients, which is an intravenous catheter that is typically inserted through a large vein generally in a patient’s upper arm and then threaded into the patient until it rests in the body directly next to the patient’s heart. It is a job that requires adherence to proper procedures and strict sterile techniques in order to avoid high risks of infection. Mecca’s disability involved panic attacks and anxiety. The accommodation he sought was in the form of leave. With respect to his particular symptoms, they included nervousness, anxiety, incontinence, and sleeplessness, among other things. After several consecutive weeks on FMLA leave, he brought a medical note from the doctor releasing him to work three days a week for 8 to 12 hours a day. However, on his first day at work back from leave, he did not respond to any request for consults, which are requests to assess a patient to insert a line. He also left for the day prior to the end of his shift. After numerous communications with the human resources department indicating that he would be subject to discipline, including termination, for failing to respond to consults, he submitted his resignation. He subsequently applied for Social Security disability benefits claiming he was unable to work as of May 8, 2010 and he was successful in that application.
In finding for the hospital, the Middle District of Florida found Samper persuasive. It also found that the role of the nurse that did what he did was very similar to one of a neonatal nurse. Accordingly, the court found that attendance at work was an essential job function of his job. The court also found that the plaintiff by filing for Social Security Disability Income was judicially estopped from pursuing his ADA case since he did not give an explanation sufficient to warrant a reasonable juror to conclude that he could perform the essential functions of the job with or without reasonable accommodation notwithstanding the representations made in the application for Social Security Disability Income.
1. When trying to figure out whether an essential function of the job includes attendance, the first step should be to look at the Samper criteria.
2. Keep in mind that even a job that satisfies all these criteria upon initial review may not be a job where attendance is an essential function of the job. For example, the Fifth Circuit in Carmona v. Southwest Airlines Company, 604 F.3d 848 (5th Cir. 2010), held that a flight attendant for Southwest Airlines may not have been in a job where attendance was an essential function in light of the airlines extremely lenient attendance policy, which thereby created a question of fact for the jury to decide.
3. It would behoove the employer to have data to back up its contention with actual practice that attendance is an essential element of the job regardless of whether the particular job at issue meets the Samper criteria.
4. On the plaintiff’s side, if the plaintiff is taking on an ADA case, the plaintiff’s attorney needs to explain the risk of filing for Social Security Disability Income should the client be suggesting that that is something he or she wants to do. If the attorney is an SSDI attorney, that attorneys should make it a part of a routine part of his or her practice to explain how the filing of an SSDI claim may compromise a future ADA claim. Failure on the part of the plaintiff’s attorney or the SSDI attorney to make that explanation may lead to a legal malpractice claim. For a blog entry of mine discussing judicial estoppel, take a look at this particular blog entry. With respect to legal malpractice, I wrote an article on it for the DuPage County Bar Association Journal, The Brief. I expand on that article on pages 142-143 of my book. On the defense side, whenever a person sues for discrimination on the basis of disability in employment, it needs to be a discovery item as to whether that person filed an SSDI claim.