Law and Order: Human Resources Unit

Terminating an employee who repeatedly calls out of work is pretty cut and dry – if they don’t bother to show up to work, why bother employing them?  But if that employee is missing work due to an illness covered by the Americans with Disabilities Act (ADA), are you allowed to cut that person loose?  A recent court case says yes.

Here’s how it happened:

• Monika Samper – a neo-natal intensive care unit nurse in Portland – worked for a company that had a maximum number of unplanned absences allowed under its attendance policy.
• Between 2000 and 2005 (in the interest of context, this is pre-Bieber America) Samper continually went over the unplanned absences limit laid out by the attendance policy.
• This was brought to Samper’s attention repeatedly and documented in 2 negative performance reviews.
• In 2005, Samper was diagnosed with Fibromyalgia.
• Given the circumstances, Samper’s employer allowed her to call out and change shifts when her ailment was affecting her.
• After some time, Samper asked to be completely exempt from the attendance policy.  Her employer, of course, denied the request.
• Samper’s poor attendance continued for years, and she was eventually terminated (after being given the option of moving to a different position).
• Samper sued her employer under the ADA.
• Samper lost – as the court found that showing up to work is an essential function of the job.

What’s noteworthy here is that the court found the employer to be innocent of violating the ADA because attendance was found to be an essential function of the job.  Given her position – a neo-natal intensive care unit nurse – this make sense.  (It’s not like you can email care to a mother and child from home.  Though, to be fair, I haven’t really explored all the features of Microsoft Lync.) 

It will certainly be interesting to see how this precedent is used in similar cases in the future. Click here  to read a more complete recap of this important case.