Yes, you do have to show up for work—attendance is an essential function of a job, especially one you can’t do via computer. That’s what a judge recently affirmed in a case that he said tested the limits of an employer’s need to accommodate.

A neonatal nurse sought an accommodation from her hospital employer allowing her to take unlimited absences, rather than the limited number of unplanned absences allowed in its attendance policy, which allows absences for bereavement, court appearances, and other unusual circumstances.

The nurse, who had never worked full-time, had been warned about exceeding the number of unplanned absences allowed for full-time employees (purportedly due to a nasty divorce) and was told her attendance needed improvement. Her supervisory nurse told her that because neonatal nurses have special skills, her unplanned absences compromise patient care.

Then the nurse was diagnosed with fibromyalgia, which caused her severe fatigue. An attendance plan was agreed to for accommodating her condition; she would only work two shifts per week and not on consecutive days.

Unfortunately, the nurse had two more negative attendance reports in the next 2 years. The nurse’s manager, HR, and a leave specialist met with the nurse who all agreed to a “highly flexible” arrangement where she could move her scheduled days to later in the week as needed. She didn’t even need to find a sub as the other nurses did.

Well, the nurse continued to be absent—for the trial of her ex-spouse, “counseling,” and other reasons unrelated to her illness. When her part-time position was eliminated, she was told that she must either work full-time or take a job in another department. She didn’t agree, and she was fired. She sued for wrongful termination under the Americans with Disabilities Act.

The hospital said at trial that her absences had caused hardship for her co-workers and that actual contact with patients was an essential part of her job, which she obviously was not fulfilling.

A circuit court judge found while some jobs do not necessitate appearance at the workplace, “the common-sense notion that on-site regular attendance is an essential job function could hardly be more illustrative than in the context of a neonatal nurse. … An employer need not provide accommodations that compromise performance quality—to require a hospital to do so could, quite literally, be fatal.”

Source: www.ca9.uscourts.gov

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