Ms. Smith worked as a literacy specialist at a school district. She had a back injury that limited her mobility. When her principal informed her that she was being assigned to teach kindergarten for the next academic year, she told the principal that her back injury prevented her from doing so. Thereinafter, Ms. Smith aggravated her back injury, and was off work totally until the end of the academic year. She applied for disability benefits and family leave.

Ms. Smith filed a claim for disability discrimination and failure to accommodate under the Americans With Disabilities Act (ADA). The employer-school district filed for summary judgment.

Ms. Smith explained that by filing for disability benefits and family leave, she meant she was temporarily disabled, not that she could never perform her literacy specialist job. The lower court granted summary judgment, holding that Ms. Smith could not both claim disability and claim she could do the job.

The Ninth Circuit reversed, noting that employees should receive a “wide latitude to overcome apparent conflicts between their disability applications and their ADA claim.”

So, BE CAUTIOUS! If you have or may have a disability or reasonable accommodation claim, and you need to fill out any paperwork (such as a disability application, workers compensation claim, personal injury case insurance forms, or family leave form) be careful what you say! They are watching you! If possible, consult with a lawyer beforehand!

Jody I. LeWitter December 23, 2013

Ms. Samper, like Ms. Humphrey, suffered from a disability that made accommodations in the attendance policy a requirement for her to work. Once at work, there was absolutely no evidence that her performance suffered in any way. This type of accommodation seemed just what the doctor ordered. Not so, says the Ninth Circuit, making some very bad law in the process.

According to the Ninth Circuit, regular attendance is an “essential function” of the job of a NICU nurse. Thus, since Ms. Samper’s disability impinges upon her attendance, the hospital need not accommodate her. The Ninth Circuit reached this opinion by relying upon the hospital’s job description and supervisor say so (isn’t that convincing!). The Ninth Circuit made fun of Ms. Samper’s argument that, since all employees are permitted sick days and vacation and the hospital is able to accommodate this, it ought to be able to accommodate further absences due to Ms. Samper’s disability.

Interestingly, there is absolutely no evidence that the care actually provided to the babies in the unit was compromised due to scheduling and/or absences by Ms. Samper or any of the other nurses. Indeed, these are highly trained professionals. The hospital states that understaffing compromises hospital care, but in no way suggested the hospital has actually ever suffered from understaffing.

This case starts by announcing, “This case tests the limits of an employer’s attendance policy. Just how essential is showing up for work on a predictable basis? In the case of a neo-natal intensive care nurse, we conclude that attendance really is essential”. Perhaps this result was reached because the record was bare on the side of the plaintiff’s evidence. Perhaps this result was reached because there is really, truly something different about neo-natal nursing. Whether this is true or not, the Ninth Circuit has just made a mess of the law of reasonable accommodation, and looked to be a bit glib about the facts. Based on this case, do we now know that attendance is not an essential function for a medical transcriptionist, but it is for a neo-natal nurse? Or do we now know that under the facts submitted to the court in Ms. Samper’s case, attendance was an essential function, but it may not be for a different hospital, a different person, a different department, a different disability/reasonable accommodation, and on a different record? All I know is that Samper v. Providence St. Vincent Medical Center, No. 10-35811, Ninth Circuit Court of Appeals (April 11, 2012), is bad law, neither well-reasoned nor providing specific enough guidance to employers, employees and lower courts.

Jody LeWitter May 7, 2012