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Employer Not Required To Permit Indefinite Exemption From Essential Functions Of Job As Reasonable Accommodation

Published by on September 7, 2012

In Robert v. Board of County Commissioners of Brown County, Kansas, et al., the United States Court of Appeals for the Tenth Circuit recently held that an employer’s decision to discharge an employee when she was indefinitely unable to return to work after a medical leave did not violate the America Disabilities Act (“ADA”).   More […]

In Robert v. Board of County Commissioners of Brown County, Kansas, et al., the United States Court of Appeals for the Tenth Circuit recently held that an employer’s decision to discharge an employee when she was indefinitely unable to return to work after a medical leave did not violate the America Disabilities Act (“ADA”).   More after the break.

Plaintiff was employed by Brown County as an Adult Intensive Supervision Officer.  In this position, her written job description included 18 essential functions, including performing drug screening, testifying in court, and field work, which consisted of visiting individuals who had been released from prison to assist them with their reentry into society.  Because of an ongoing joint dysfunction, plaintiff became unable to walk and required surgery in 2004.  In the weeks prior to the surgery and during her recovery, the County permitted plaintiff to work from home.  Plaintiff returned to work and all of her job duties after her recovery from surgery.  In 2006, plaintiff was required to have another surgery after she fell down a flight of stairs at work.  In the weeks prior to the surgery, plaintiff continued to work in the office,  but she was unable  to testify in court, perform field work, or supervise drug screenings and her co-workers were required to assume those duties.  After the surgery, plaintiff was placed on leave pursuant to the Family Medical Leave Act (“FMLA”).  In July, 2006, plaintiff had exhausted her leave and she was still unable to return to work.  At that time, plaintiff told her supervisor that she would be able to walk with a cane in three to four weeks, but the reports from the workers’ compensation carrier stated that she would not be able to work for a couple of months.  The County then terminated plaintiff’s employment because she was unable to return to work after she had exhausted her vacation, sick, and FMLA leave.

Plaintiff then sued the County, claiming 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 County on all claims and plaintiff appealed.  The Tenth Circuit upheld the dismissal, finding that Plaintiff was unable to put 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.  The Tenth Circuit stated that the fact that the County excused her inability to perform field work in 2004 was not evidence that those duties were nonessential to the job as “[t]o give weight to that argument would perversely punish employers for going beyond the minimum standards of the ADA.”

Plaintiff also argued that she would have been qualified to perform the essential functions of her position and return to work had she been allowed additional leave or a reprieve from the essential functions.   In response, the Tenth Circuit recognized that a brief leave of absence for medical treatment or recovery can be a reasonable accommodation.  The Court, however, 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. Without this, 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.”  Plaintiff’s need for accommodation failed to meet both points as she failed to provide a date when she would be able to perform field work for which she was required to be fully mobile.  Accordingly, the Tenth Circuit held that the only potential accommodation for plaintiff 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.

In reaching its decision, the Tenth Circuit relied heavily on the essential functions of plaintiff’s position as described in the County’s written job description.  Accordingly, employers should assure that their job descriptions include the essential functions of the position.  Job descriptions should also be regularly reviewed and updated to ensure that the essential functions of the position are accurate and thorough.

FMLA Insights has a post on this case here.

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