GANFER & SHORE, LLP
CLIENT EMPLOYMENT LAW ADVISORY
REQUIRING EMPLOYEE TO COMPLY WITH ATTENDANCE
POLICY IS NOT A FAILURE TO ACCOMMODATE WHERE
REGULAR ATTENDANCE IS AN ESSENTIAL JOB FUNCTION
An employer’s attendance policy permitted employees to take up to five unplanned absences during a rolling 12-month period. Plaintiff, a neo-natal intensive care unit (“NICU”) nurse, regularly exceeded that number. After plaintiff was diagnosed with fibromyalgia, the employer permitted her to call in anytime she was having a “bad day” and then accommodated her by moving her shift to another day that week. Ultimately, when plaintiff requested a blanket exemption from the attendance policy, the employer refused. When plaintiff’s attendance problems continued, she was terminated. She sued under the Americans with Disabilities Act (“ADA”), charging the employer with failing to accommodate her disability. The trial court dismissed the complaint and plaintiff appealed.
The federal appeals court in California affirmed the dismissal in Samper v. Providence St. Vincent Medical Center, 2012 WL 1194141 (9th Cir. 2012). Plaintiff’s central argument was that regular attendance was not an essential function of her NICU nurse position. The court stated that the “case turns on the role that regular attendance plays in the functions of a NICU nurse” and observed that a majority of federal appeals courts have held that in jobs where performance requires regular attendance at the job site, irregular attendance compromises essential job functions.
The court stated that plaintiff’s NICU nurse position combined “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.” The court concluded that “[a]n accommodation that would allow [plaintiff] to ‘simply . . . miss work whenever she felt she needed to and apparently for so long as she felt she needed to [a]s a matter of law . . . [is] not reasonable’ on its face.” Accordingly, the court rejected plaintiff’s argument and appeal.
INDEFINITE LEAVE IS NOT A REQUIRE ACCOMMODATION
WHEN AN EMPLOYEE IS NO LONGER ABLE TO WORK
For many years, an employer accommodated plaintiff’s various medical conditions by allowing him to telecommute. When he was faced with the possibility that his position would be outsourced, plaintiff moved a new position that allowed him to continue to telecommute with his supervisor’s approval, but also required regular hours in the office. After plaintiff developed bronchitis and took multiple FMLA leaves, his physician certified that plaintiff was “unable to work at all.” As plaintiff was ineligible for additional FMLA leave (because he had not worked the minimum 1,250 hours for coverage under the FMLA in the previous calendar year), the employer further accommodated him by providing an additional 720 hours of accrued sick leave.
Thereafter, due to budget cuts, plaintiff’s position was eliminated, and he was terminated while still on sick leave. He sued for disability discrimination under the ADA. A federal trial court dismissed the case and plaintiff appealed.
The federal appeals court in New Orleans rejected plaintiff’s appeal in Amsel v. Texas Water Development Board, 2012 U.S. App. LEXIS 5681 (5th Cir. 2012), noting that plaintiff only was “qualified” if he could perform his job with reasonable accommodation. The court found that although plaintiff was for many years able to telecommute to accommodate his disabilities, before he was terminated he “was completely unable to come to work” and, indeed, that he had not been in the office for over five months at the time of his discharge. Moreover, plaintiff had exhausted his FMLA and other sick leave, and there was no indication when, if ever, he would return to work.
The court explained that “indefinite leave” is not a reasonable accommodation and that an office presence was an undisputed requirement of the job for purposes of teamwork and customer service. As plaintiff was unable to show that he could work from home or anywhere else, the court concluded that plaintiff was not “qualified” under the ADA.
IF YOU ARE CONIDERING HIRING INTERNS THIS SUMMER, BE CAREFUL
If you are planning to hire an unpaid intern, you should make sure that the intern is not an “employee” under state or federal labor laws or you will be required to pay minimum wage and overtime.
If your company is for-profit, there are six criteria for hiring unpaid interns:
- The intern must receive training and the training is similar to what would be given in a vocational school or academic educational instruction, although merely offering educational credit is not enough to sustain a non-employee intern status;
- The training is for the benefit of the intern;
- The intern does not displace regular employees, but works under their close observation;
- You derive no immediate advantage from the intern’s activities (and, in fact, on occasion your operations may actually be impeded);
- The intern is not necessarily entitled to a job at the conclusion of the training period; and
- Both you and the intern understand that the intern is not entitled to wages for the time spent in training.
Unpaid internships are generally permissible for non-profit organizations provided that (a) an intern cannot displace paid employees; and (b) the intern must be made aware that he or she will not be paid. Any compensation, even as a stipend, may transform the intern into an employee to whom you are obligated to meet wage-and-hour requirements, including the minimum wage and overtime.
The cases presented in this Advisory are drawn from courts located throughout the United States. They may or may not apply to a given employer based upon regional interpretations of federal law as well as any applicable state or local laws. If you have any questions concerning labor or employment law, please contact Robert I. Gosseen, Esq., who heads this practice area at Ganfer & Shore, LLP, at (212) 922-9250, ext. 288, or your contact at the firm.