Wednesday, April 11, 2012

Samper v. Providence St. Vincent Medical Center (9th Cir. - April 11, 2012)

A plaintiff with fibromyalgia sues under the ADA, claiming that her employer fired her after refusing to provide her with a reasonable accommodation for her disability.  Judge McKeown says:  "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."

That's a pretty persuasive way to frame the opinion.  And I say that despite the fact that (1) my sister is a pediatric nurse, and (2) has fibromyalgia.  So this is a case with particular interest to me.  And I think that Judge McKeown gets it right.  The employer tried reasonably hard, and there was no ADA violation here.

I'd just add one amendment to Judge McKeown's otherwise excellent opinion.  The intuitive sense that attendance is essential for a NICU nurse -- and that's the central thrust of her analysis -- isn't actually as strong as it might first appear.  It's true that someone has to show up, otherwise babies die.  But knowing exactly who will show up isn't intrinsically essential.  As long as an adequate number of employees show up for work, the NICU can work fine.  Even if any particular employee is allowed -- as an accommodation for her disability or otherwise -- to have any number of unplanned absences.

We know that's possible because there's already a federal law -- the Family Medical Leave Act -- that affirmatively allows people to miss work for unplanned reasons and not get fired.  Ditto for jury duty and other legitimized exceptions for missing work.  Plus, the hospital here allowed, in addition to all of these permissibly missed days, every employee to miss work for five periods on an unplanned basis.  So we know for certain that it's possible to run a business -- even a NICU -- by allowing employees to miss work for unplanned reasons.  We do it all the time.  We do it here.  Plaintiff's simply requesting an accommodation for her unique medical situation by asking that she be permitted more than the five excused absences provided to non-disabled employees.

Again, I think that Judge McKeown's right that the ADA doesn't require the type of open-ended, limitless accommodation requested by plaintiff here, at least in the context of critical health care professionals.  But that's not only due to the nature of the employment (which Judge McKeown mentions), but also because of something that Judge McKeown doesn't mention (but I think she has to):  the size of the staff.

Standard deviations solve absence problems with a large enough population.  Imagine, for example, a NICU with 1,000 nurses.  It'd be entirely feasible for such an institution to function effectively even under a policy of extreme non-attendance:  for example, with a rule that says "Employees can miss work whenever they're sick for as many times as they need whenever they want."  Or even "Employees can work if they want to and not work when they don't feel like it."  You might never know in advance which particular employee would elect to show up.  But the law of large numbers would mean that the total number of nurses who would in fact be there to staff the NICU would be relatively stable:  say, 850 to 870 every day.  Sure, there'd be exceptional ("three-plus standard deviations") days every once in a while.  Just like there are in regular workplaces where a flu bug's going around (or it's near Christmas, or an especially sunny day) where an especially large number of employees call in sick, leaving you shorthanded.  But you can deal with those by calling in temporary or part-time nurses or asking people to work overtime.  That's, again, what we already do.

So, to me, a reasonable accommodation analysis has to include an assessment of the size of the staff, not just the nature of the work. What'd be reasonable for a three-nurse NICU, for example, is far different than what would be reasonable in a twenty- or eighty-nurse NICU.  And it's not like the latter's totally unrealistic.  My daughter Sierra, for example, stayed in one for the first ten days of her life.

I'd still sign on to Judge McKeown's opinion, because I think it's likely that the staffing levels at Providence St. Vincent are sufficiently small to mean that, yeah, there's no ADA violation here.  But I think you have to include that factor as part of your analysis.  Otherwise the standard you're setting is wrong.

Sometimes, it's not just quality that matters.  It's also size.