Whether and to what extent attendance is an essential job function is perhaps the most vexing ADA issue. In Samper v. Providence St. Vincent Medical Center (9th Cir April 11, 2012), the plaintiff, an ICU neo-natal nurse with fibromyalgia, asked to “opt out” of the employer’s unplanned absence policy as an accommodation.

 In a remarkably refreshing opinion likely to be cited regularly for its analysis of whether regular attendance is an essential function, the Ninth Circuit affirmed summary judgment for the hospital, noting that plaintiff’s job “unites the trinity of requirements that make regular on-site presence necessary for regular performance: teamwork, face-to-face interaction with patients and their families, and working with medical equipment.” 

 Applying the Supreme Court’s infrequently applied US Airways, Inc. v Barnett analysis, the Court stated that plaintiff’s request to “miss work whenever she felt she needed to and apparently for so long as she felt she needed to” is “not reasonable on its face.” The hospital “was under no obligation to give [plaintiff] a free pass for every unplanned absence,” the Court said. Her request would exempt her from an essential function and “would gut reasonable attendance policies,” the Court noted, adding that in a hospital, such an accommodation could “quite literally, be fatal.”