Here’s what it’s come to in employment law today: A federal judge has ruled that an employer has the right to require its employees to show up for work.

And no, the case didn’t involve somebody who wanted to telecommute, or make some other reasonable arrangement to fulfill their job requirements.

This was about a nurse who worked in a neo-natal intensive care unit (NICU) — you know, the place where they take care of really sick newborns, and where, it would seem, having adequate staff could be a life-and-death kind of thing.

Apparently, Monika Samper didn’t agree.

Samper worked for Providence St. Vincent Medical Center in Portland, OR. PSV allowed its employees to take up to five unplanned absences during a rolling twelve-month period. Unplanned absences for things like FMLA, jury duty and bereavement didn’t count towards the limit.

Oh, and one more thing: Each absence, however long, counted as only one occurrence.

Which box do I check to ‘opt out’?

Samper, who suffered from fibromyalgia, a condition that causes sleep disturbances and chronic pain, did not find her employer’s generous absence policy generous enough.

She wanted to “opt out” of the hospital’s attendance requirements.

Over an 11-year period, Samper never worked full time, but regularly exceeded the number of unplanned absences permitted for full-time employees.

She was chided several times in performance reviews for her attendance problems, but the unauthorized absences continued.

By all accounts, her employer was remarkably accommodating.

At one meeting called to address her attendance problems, PSV agreed to a “highly flexible” arrangement, in the words of the court — Samper was allowed to call in when having a bad day, and move her shift to another day in the week.

PSV didn’t even require Samper to find a replacement for her shift.

At Samper’s request, the hospital later agreed not to schedule her two shifts per week on consecutive days.

A ‘Herculean’ effort

There’s more to this saga, including Samper’s medical leave, absences to attend a trial involving her spouse, and time off to “obtain counseling” — but suffice it to say that after years of bending over backwards to accommodate her, PSV finally fired Samper.

And she filed a lawsuit, saying her firing violated the Americans with Disabilities Act.

She got shot down. “Despite Providence’s Herculean efforts to accommodate her, Samper’s attendance never met the attendance policy requirements,” the appeals court judge said.

The court closed its ruling with this no-brainer: “Samper’s performance is predicated on her attendance; reliable, dependable performance requires reliable and dependable attendance. An employer need not provide accommodations that compromise performance quality—to require a hospital to do so could, quite literally, be fatal.”

The case is Samper v. Providence St. Vincent Medical Center. To read the full decision, go here.






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