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Leave Under the Americans with Disabilities Act Is Not a Free Pass to Not Work

Lawsuits can go either way in court, as this plaintiff discovered when she lost her case.

While there are many reasons to file a lawsuit under the Americans with Disabilities Act (ADA), those reasons must be valid when tested by the courts. If they are not, the plaintiff may lose his case. This is what happened in Samper v. Providence St. Vincent Med. Ctr., 9th Cir., 4/11/12,” said Timothy Coffey, a Chicago employment lawyer and principal attorney for The Coffey Law Office, P. C., an employment litigation firm dedicated to representing employees in the workplace.

In Samper, the plaintiff neonatal intensive care nurse was a fibromyalgia sufferer, experiencing chronic pain and an inability to sleep soundly or restfully. Her unplanned absences from work were more than allowed, according to the terms of her job description. In working with the nurse to try and accommodate her medical issues, the hospital agreed to a very flexible schedule that would allow her to move her shift, should she be having a bad fibromyalgia symptom day.

Even with the new very flexible shift arrangement, her rate of attendance in the workplace did not get any better, so the hospital fired her. The nurse chose to sue the employer under the ADA, alleging they did not offer her reasonable accommodation, as outlined in the ADA. The hospital’s defense was that, while they did acknowledge she was disabled, they did not feel that an open-ended pass to be absent for work was reasonable, not in a job such as working in the neonatal intensive care unit, where her physical presence as essential.

If the worker was not present at the hospital in the neonatal intensive care unit, then she could not perform her job, whether she had a flexible schedule or not. Since that was the case, and that the nurse could not do her work at home, she should not be considered a qualified individual protected under the auspices of the ADA.

When this case got to court, the legal question of the day was whether or not showing up for work on a predictable basis was essential. The decision was that a nurse in the intensive care unit must be in attendance, not only because it was essential, but because it was a matter of life or death. The defendant won this case,” said Coffey.

Not all cases that go to court win, and there is a valuable lesson inherent in this case. Predictably showing up for work is essential, or a job cannot be done. This fact must be a part of the job description, to be fair to employees by outlining everything expected of them. Additionally, the employer must make an effort to offer reasonable accommodations for a worker. This hospital made a significant accommodation for this nurse, but she wanted that to exempt her from the very essential nature of the job: being in regular attendance. This means it was not afforded protection under the ADA.

Timothy J. Coffey is a Chicago employment lawyer with, and owner of, The Coffey Law Office, P.C., a Chicago employment litigation firm. To learn more, visit