The Americans with Disabilities Act requires employers to provide reasonable accommodation to qualified employees with a disability to allow them to perform their essential job functions. Last month, the Ninth Circuit Court of Appeals joined other federal circuits in concluding that attendance is an essential function of most jobs.

In Samper v. Providence St. Vincent Med. Ctr., the plaintiff was a critical care neonatal nurse who developed fibromyalgia. She began missing an extensive amount of work, and despite significant attempts to accommodate her absences, the employer eventually terminated her based on her inability to maintain a reasonably regular work schedule. She sued, claiming failure to provide reasonable accommodation under the ADA.

The Ninth Circuit affirmed dismissal of the claim. In its opinion, the court concluded that for the nursing job, being at work on a regular basis was an obvious essential function of the position. The court noted that the plaintiff's requested accommodation, unlimited absences, would result in her not being qualified for the job due to her not being at work.

The court rejected the EEOC's position that attendance itself is not a job function, but is instead a means by which the job gets done. The EEOC takes the position that the employer must demonstrate the impact of the absences on the job duties themselves, and that the employee's absences alone do not create an undue hardship. Although somewhat semantic, the difference is important in practice. In most cases, the employer can simply demonstrate absenteeism as the essential job function, rather than having to engage in a more detailed analysis of the impact of the absences on job performance.

The Ninth Circuit joins most other federal courts that have considered this issue. Given that the Ninth Circuit is generally the most employee-friendly jurisdiction in the U.S., this decision may serve as the final judicial rejection of the EEOC's view of attendance as a job function.