Court provides guidance on managing employee attendance

By Rich Meneghello

The Daily Record Newswire

I'm going to guess that many employers or managers can immediately think of an employee they supervise who has an attendance problem.

Perhaps it's someone who misses a lot of Mondays and Fridays. Or maybe it's a worker who waits until the last minute to call in sick. Or it could be an unreliable employee who never seems to be there when needed.

The person may be in violation of absence policies, but the looming question is what kind of discipline or termination is allowed by law. Well, the good news is that a federal appeals court recently issued a decision that provides a little more guidance.

Our case starts in Portland, at Providence St. Vincent Medical Center -- specifically, the neonatal intensive care unit. Monika Samper, a neonatal nurse, started working in the unit in 1997. After several years, Samper was diagnosed with fibromyalgia, a condition that caused her chronic pain and interfered with her sleep. It also led to her missing quite a few days at work.

Providence had a fairly generous sick leave policy that sanctioned five unplanned absences every rolling 12-month period, not including planned absences for jury duty, bereavement and other life events. Samper regularly exceeded the number of allowable absences, and her supervisors frequently talked with her and informed her that she needed to do a better job of managing her attendance.

Supervisors also let Samper flex her schedule so that she could switch off days when she wasn't feeling well and find a substitute to cover her shift. But even with that flexibility, Samper continued to run afoul of company policies, and was put on a warning plan.

Samper then asked for an accommodation: She wanted an exemption from the attendance policy altogether. Providence could not grant her this request because failure to provide adequate staff in the neonatal unit could compromise patient care.

After Samper continued to violate attendance policies and further verbal and written discipline was issued, Providence finally terminated her employment. Samper sued and claimed that her termination was in violation of the Americans with Disabilities Act, which requires employers to provide reasonable accommodation to disabled employees so that they are able to perform their jobs.

The Ninth Circuit Court of Appeals -- the federal appeals court that hears cases arising from Oregon, Washington, California and six other Western states -- ruled in Providence's favor in a decision issued in April.

The court, however, acknowledged that there may be times when an employer needs to cut an employee some slack and allow additional days of leave beyond the number allowed in a sick leave policy. Imagine, for example, a dockworker or a call center employee or any type of production employee whose absence could be filled without much bother.

But for someone whose absence could be the difference between life and death, it is a much different story. The court ruled that it was perfectly acceptable for Providence to hold its neonatal nurses to a reasonable attendance standard, and that the termination was justified.

But what about those employees who fall somewhere in the middle -- between neonatal nurses and dockworkers? The court provided some guidance, saying that employers should consider three possible factors when determining whether attendance is an essential function that cannot be compromised.

First, determine whether employees are required to be at work because they are part of a team. Second, determine whether the job requires face-to-face interaction with others - like a teacher or a customer service agent? Third, determine whether the employee must be on-site to perform the job -- like a computer consultant, a mechanic or a housekeeper.

These requirements will be examined by courts in such cases, and although all three are not necessary in order to pass the test, the more the better.

If an employee's job could be done from home or after hours, or if the work could be pushed until later without much consequence, of if the work required little or no face-to-face time, an employer may need to consider letting a worker exceed attendance policy limits.

The final piece of advice from the court is that all employers should draft detailed job descriptions well before any problems arise. These job descriptions should contain a section that specifically spells out "essential" functions of the job. And if adherence to the company attendance policy and punctuality are essential, they should be listed.


Rich Meneghello, managing partner of the Portland office of Fisher & Phillips LLP, is dedicated to representing the interests of management. Contact him at 503-205-8044 or, or follow him on Twitter - @pdxlaborlawyer.

Published: Tue, Jun 19, 2012