Is Leave An Accommodation If It Is Unclear If The Employee Will Be Able To do The Job In The Future?
September 4 2012
Robert v. Board of County Commissioners of Brown County, Kansas, et. al. (10th Cir. Aug. 29, 2012) No. 11-3902
The job description for Robert’s job as a supervisor of felony offenders included 18 “essential functions.” Some of those included functions like performing drug screenings, ensuring compliance with court orders, testifying in court, and “field work,” which consisted of visiting the homes of individuals who had been released from prison to assist them in their reentry into society. The job required “considerable fieldwork . . . throughout the 22nd Judicial District," "visits in less than desirable environments," and "potentially dangerous situations in field/office contacts."
In January 2004, Robert began to experience severe pain in her back and hips. Her condition was eventually diagnosed as sacroiliac joint dysfunction. She scheduled surgery for her condition in April. In the meantime, walking became impossible, and she used crutches and later a wheelchair to get around. She continued to work from the office, though some adjustments were necessary; for example, she participated in court hearings by telephone. In the weeks immediately preceding her surgery, and again during her recovery, Robert worked from home by auditing case files for closed cases. During this time, she was unable to visit offenders at their homes or in jail, and she was similarly unable to supervise drug and alcohol screenings. As a result, other employees took up those tasks for her. According to Robert’s supervisor, the increased workload for other employees created tension and ultimately contributed to one employee’s resignation. Robert returned to the office in July or August 2004 and was eventually able to resume all of her work activities.
However, Robert’s good health was fleeting. In November 2005, she fell down the stairs in the Brown County courthouse. Shortly thereafter, symptoms of her joint dysfunction returned, leading her to schedule another surgery for April 2006. Like before, Robert continued to come in to the office prior to the operation, but she was unable to perform site visits, testify in court, or supervise screenings. Once again, her co-workers had to assume those duties. Because she was injured at work, Brown County’s workers’ compensation insurance covered her medical care. After her surgery, Robert took FMLA leave which lasted until July 5, 2006, at which point, Robert still was unable to return to work, although she also had exhausted her sick and vacation leave. Although the evidence was unclear as to the extent of the information Robert provide to Brown County, Robert told her supervisor that she would be able to walk with a cane in three to four weeks. According to reports from the workers’ compensation carrier, Robert would not be able to come into the office for a couple months. The supervisor’s journal notes were somewhat oblique but suggested that she understood the workers’ compensation carrier to convey that Robert could, in the best of scenarios, return to work with a cane in a month.
At this point, Robert had exhausted her FMLA, sick, and vacation leave, and the supervisor recommended that the Board terminate her employment. On July 31, the Board voted to terminate Robert. The supervisor, who considered Robert a friend, insisted on delivering her termination letter in person. Unbeknownst to Sloan, Robert’s husband recorded the emotional conversation that took place between the supervisor and Robert. The supervisor told Robert that the County Commissioners had decided to terminate her because she was unable to return to work at full capacity after her leave ended. Robert was shocked and upset, but acknowledged she was "an at-will employee, okay, and it’s up." In fact, she recognized her at-will employment status several times during the conversation.
Robert then sued the County, the Commissioners, and her supervisor. She claimed that her termination constituted unlawful retaliation for her use of FMLA leave, discrimination under the ADA, and, other claims. The district court granted summary judgment in favor of the defendants on all claims and Robert appealed. The Tenth Circuit upheld the dismissal, finding that Robert was unable to set forth a prima facie case of discrimination under the ADA because she could not show that she was qualified to perform the essential functions of her job with or without accommodation. It first addressed the fact that Robert could not perform the essential functions that were included in her job description without accommodation, because of her impairment. The Court pointed out that the County’s willingness to excuse Robert’s inability to perform site visits during her first, lengthy but “ostensibly temporary,” period of time in 2004 was not evidence that those duties were nonessential. According to the Tenth Circuit, “[t]o give weight to that argument would perversely punish employers for going beyond the minimum standards of the ADA.”
The Tenth Circuit also addressed the important and complicated issue of how much leave an employer must give an employee as a form of “reasonable accommodation” under the ADA. The Court recognized that a brief leave of absence for medical treatment or recovery can be a reasonable accommodation. However, the Court went on to explain that there are two limits on the “bounds of reasonableness” for that leave.
· First, the employee must provide an estimated date on which he or she can resume the essential functions of the job. The Court said that without that information, an employer is unable to determine the reasonableness of the request.
· Second, the leave request must assure that the essential functions can be undertaken in the “near future.” The Court did not specify how “near” that future must be but it did cite another case in which the court held that a six-month leave request was too long to be a reasonable accommodation.
The Court found that Robert’s needed accommodation exceeded both criteria for reasonableness, because she failed to provide any definite date on which she would be fully mobile and could return to field work. As such, the Court held that the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions and such an accommodation is unreasonable as a matter of law.
Lesson for Employers: This decision makes clear that job descriptions outlining the “essential functions” of an employee’s position are key in evaluating whether or not a reasonable accommodation can be provided to an employee under the ADA. As such, the importance of properly drafted job descriptions cannot be overstated. The other lesson from this decision is the importance of contemporaneous documentation of the interactive processes (dialogue) between the employer and the employee when evaluating the employee’s work restrictions and the availability of a leave of absence as a form of reasonable accommodation. If an employer can show that an employee has failed to provide an estimated return to work date and/or that the employee will be able to resume the essential functions of the job in the “near future,” then the employer is more likely to be able to defend against a failure to accommodate claim under the ADA if the employee is terminated or not reinstated. Of course, each case must be evaluated on its own based on the particular circumstances involved.