Tenth Circuit on Leave as a Reasonable Accommodation

Last week, the United States Court of Appeals for the Tenth Circuit issued an opinion in Robert v. Board of County Commissioners.  Robert worked for the county as an Adult Intensive Supervision Officer, which basically meant that she supervised adult offenders who were on probation.  The job required extensive time out of the office; between a quarter and a half of Robert's time was spent conducting site visits to her offenders' homes and workplaces.  In November 2005, Robert fell down a flight of stairs at work, which severely restricted her mobility.  She scheduled surgery for April 2006.  In the meantime, she could not conduct site visits, so her supervisors assigned her to work that could be done in the office.  Robert had her surgery as scheduled and took FMLA leave to recover.  That leave expired on July 5, 2006.  A couple of weeks later, Robert's doctor told Robert and her supervisor that she might be able to walk with a cane in a month.  But because Robert could not yet return to work, and she had exhausted her FMLA leave, the county fired her.  Robert sued the county.  Among other things, she claimed that her termination violated the ADA.  The United States District Court for the District of Kansas granted summary judgment to the county.

The Tenth Circuit affirmed.  In an opinion by Judge Carlos Lucero, the court concluded that supervising offenders in person was an essential function of Robert's job, and that she concededly could not perform that function at the time she was terminated.  The court acknowledged that a leave of absence could be a reasonable accommodation that would enable an employee to perform the essential functions of her job, but only if: (1) the employee "provide[s] the employer an estimated date when she can resume her essential duties"; and (2) the leave request "assure[s] [the] employer that [the] employee can perform the essential functions of her position in the 'near future.'"  The court concluded that Robert's leave request failed at least the first of these requirements:

There is no evidence in the record that Robert's employer had any estimation of the date Robert would resume the fieldwork essential to her position. Although the doctor's prognosis varied before and after the surgery, Naylor told Sloan on July 19, 2006—just after Robert's follow-up appointment and shortly before she was terminated—that Robert could be walking with a cane in three to four weeks. However, Robert questioned whether this time frame was “too fast,” and testified that she assumed her job would be protected “regardless of the length” of her recovery. In any event, the doctor's prediction that Robert could walk with a cane in a month's time does not suffice to assure the county that she would then be able to perform site visits and other fieldwork. As Robert herself recognized, she needed near-full mobility to ensure her safety as she visited felony offenders in their homes, workplaces, and treatment facilities, an activity that could be dangerous. Accordingly, the record shows that, at the time of her termination, the county did not have a reasonable estimate of when she would be able to resume all essential functions of her employment. As such, the only potential accommodation that would allow Robert to perform the essential functions of her position was an indefinite reprieve from those functions—an accommodation that is unreasonable as a matter of law.

This decision highlights the importance, for employees seeking leave as a reasonable accommodation, of being quite clear in the duration of the leave requested.  Of course, the expectation that an employee recovering from an injury or surgery can provide a clear date of return is not especially realistic.  But the Tenth Circuit's decision here is consistent with a trend in the courts to place the burden of uncertainty on the employee with a disability.