Friday, April 20, 2012

Can You Compel Your Employees To Show Up?

It is difficult to conceive why an employer would be required to defend its attendance policy in court.  Unfortunately, many employees have challenged their employers' position that showing up to work on time is an essential function of the job.  In a recent Ninth Circuit case, Monika Samper challenged her employer's attendance policy.  Samper v. Providence St. Vincent Medical Center, Case 10-35811 (9th Cir. Apr. 11, 2012.  The case is instructive for several reasons.  First, the opinion identifies the reasons why attendance, at least in certain jobs, is an essential part of the job.  Second, the case demonstrates how an employee's take advantage of employer's generosity.  As frequently heard, "No good deed goes unpunished."

Monika exceeded the permissible five unplanned times within a 12-month period.  The hospital noted this in her evaluation.  Monika predicted she would not have further problems because the absences were related to a nasty divorce, which was now behind her.  This was not to be.  Monika continued to exceed the five unplanned absence limit.  She blamed her medical condition and sought an accommodation -- a free pass from the hospital's favorable absence policy. 

The hospital then gave her additional time off, that did not count against the five absence limit -- to attend a trial of her husband, to obtain counseling, and to obtain medical treatment.  Yet, Monika continued to miss work until she was fired.  (She should have been happy.  She didn't have to go to work at all then.) 

The court articulated reasons for attendance.  They included working as a team, interacting face to face with customers and co-workers, and working with on-site equipment.  The court even went so far as to say that on-site regular attendance as an essential element of a job is a "common sense" notion.  Working as a NICU nurse is a prime example of why attendance is required.  Nevertheless, whether or not attendance is essential to a particular job requires an individualized assessment of the position. 

I was glad to read the court's strong language regarding attendance.  We see this situation much too frequently.  Employees with bad habits claim a medical condition prevents timely and regular attendance.  I just can't buy it.   Work is just that -- work.  It requires dedication, discipline and action.  Going to work everyday is a basic fundamental of success.  If people want to enjoy success, they must be at work, every day, on time.  And our laws should reflect the values of discipline and consistency.  Otherwise, we do Monika and others like her a disservice. 

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