In Samper v. Providence St. Vincent Med. Ctr., 675 F.3d 1233 (9th Cir. 2012), the Ninth Circuit stated: “This case tests the limits of an employer’s attendance policy.  Just how essential is showing up for work on a predictable basis?  In the case of a neo-natal intensive care nurse, we conclude that attendance really is essential.”

In this case, the plaintiff worked for the defendant for eleven years as a registered neo-natal intensive care unit (“NICU”) nurse.  The plaintiff suffered from fibromyalgia, a condition that limited her sleep and caused her chronic pain.  She sought an accommodation from Providence that would have allowed her an unspecified number of unplanned absences that were caused by her medical condition.  At the time, Providence’s attendance policy allowed only five unplanned absences of unlimited duration during a rolling twelve-month period as well as unplanned absences related to family medical leave, jury duty, bereavement leave, “and other approved bases,” which were not counted toward this limit.  During the plaintiff’s employment, she regularly exceeded the number of permitted unplanned absences.  Despite frequent warnings and meetings with plaintiff designed to accommodate her disability-related needs, plaintiff continued to violate the company’s attendance policy.

In reaching its conclusion that “regular attendance is an essential function of a neo-natal nursing position at Providence,” and therefore the plaintiff could not proceed to trial on her disability discrimination claim, the Court first stated:

This case turns on the role that regular attendance plays in the functions of a NICU nurse.  To establish a prima facie case for failure to accommodate under the [Americans with Disabilities Act (“ADA”)], Samper must show that ‘(1) [s]he is disabled within the meaning of the ADA; (2) [s]he is a qualified individual able to perform the essential functions of the job with reasonable accommodation; and (3) [s]he suffered an adverse employment action because of [her] disability.’  Providence does not dispute that Samper is disabled, that she has the requisite technical skills for the job, or that she suffered an adverse employment action.  Samper runs into an insurmountable hurdle, however, in arguing that regular attendance is not an essential function of the NICU nurse position.

Providence presented evidence that its written job description pertaining to the neo-natal intensive care unit nurse position listed attendance and punctuality as essential functions.  Providence also submitted a declaration from Samper’s former supervisor stating that “NICU nurses must have specialized training, and it is very difficult to find replacements, especially for unscheduled absences.”

The Court acknowledged that “regular attendance is not necessary for all jobs” given that “on-site presence is not required for all jobs.”  However, the Court also reasoned that “[t]he common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neo-natal nurse.  This at-risk patient population cries out for constant vigilance, team coordination and continuity. . . . ‘This is not a job where it is possible to argue . . . that ‘workers were basically fungible with one another, so that it did not matter who was doing the [job] on any particular day; [and the employer] did not follow any fixed policy other than to treat each case individually, giving very lengthy leaves to people he found deserving.’ . . . Both before and since the passage of the ADA, a majority of circuits have endorsed the proposition that in those jobs where performance requires attendance at the job, irregular attendance compromises essential job functions.”

The Court rejected the plaintiff’s requested accommodation for unlimited unplanned absences on the ground that it would amount to an “open-ended schedule that would allow [her] to come and go as [s]he pleased. . . . To imagine a NICU facility,  responsible for the emergency care of infants, operating effectively in such a manner, stretches the notion of accommodation beyond any reasonable limit.  An accommodation that would allow Samper to ‘simply . . . miss work whenever she felt she needed to and apparently for so long as she felt she needed to [a]s a matter of law . . . [is] not reasonable’ on its face.”

The Court also noted: “Samper’s request so far exceeds the realm of reasonableness that her argument leads to a breakdown in well-established ADA analysis.  In most cases, the essential function and reasonable accommodation analyses are separate: first, a court inquires as to the job’s essential functions, after which the plaintiff must establish that she can perform those functions with or without reasonable accommodations.  Samper essentially asks for a reasonable accommodation that exempts her from an essential function, causing the essential functions and reasonable accommodation analyses to run together. Samper’s approach would eviscerate any attendance policy, leaving the hospital with the potential for unlimited absences.”

Based on these principles, the Court affirmed the district court’s grant of summary judgment in favor of Providence, finding that “Providence was under no obligation to give Samper a free pass for every unplanned absence” despite her medical condition.


Bernstein & Friedland, P.C. is a boutique employment law firm in Los Angeles specializing in wrongful termination, discrimination, harassment, retaliation, and unpaid wage and overtime matters.  Please visit our website at to learn more about us.

Polina Bernstein

Polina Bernstein

Polina Bernstein founded Bernstein & Friedland, P.C. in 2009 and is lead litigation counsel at the firm.

Diana Friedland

Diana Friedland

Diana Friedland is a partner at Bernstein & Friedland, P.C. Her practice focuses on employment litigation and counseling.

Leave a Reply

Your email address will not be published. Required fields are marked *

Skip to content