An issue that confounds employers on a regular basis is whether the discharge of an employee who is unable to return to work after a medical leave will violate the American with Disabilities Act (ADA). Most employers understand their obligation to engage in an interactive process to determine a reasonable accommodation that will assist the employee in returning. But questions often arise regarding whether to allow the employee a reprieve from undertaking the essential functions of the job to which he or she is returning, and whether that reprieve can be for an indefinite period of time.
The 10th U.S. Circuit Court of Appeals recently addressed that question in the context of a county employee who, because of back surgery and an ongoing joint dysfunction, was unable to undertake the essential functions of her position as an Adult Intensive Supervision Officer. In that case, the court determined that the county’s decision to discharge the employee when she was unable to return to work after a medical leave did not violate the ADA. Robert v. Board of County Commissioners of Brown County, Kansas, et al, 10th Cir., No. 11-3902, August 29, 2012.
Catherine Robert’s job as a supervisor of felony offenders included 18 “essential functions,” as listed in her written job description. Those functions included 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. In 2004, Roberts was diagnosed with sacroiliac joint dysfunction, which ultimately required surgery, after walking became impossible for her. In the weeks immediately prior to the April 2004 surgery and during her recovery, Roberts was allowed to work from home, auditing case filed for closed cases. During this time, she could not engage in field work, and was unable to supervise drug screenings. Instead, that work was shouldered by her co-workers, creating tension within the small group, ultimately leading to the resignation of one member.
Roberts returned to work in July or August 2004, and was able to return to all of her job duties. Unfortunately, in November 2005, Robert fell down a flight of stairs at work and required another surgery, which occurred in April 2006. Again, Robert was unable to do field work or drug screenings and her co-workers assumed those duties. 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 is unclear as to the extent of the information provided by Roberts to the county, there was no documentary evidence that Robert would be released to work in the near future; there was, however, testimony from Robert that she could not perform field work unaccompanied, and that she would be unable to walk without assistance for some time to come. On July 31, the county commissioners decided to terminate Robert’s employment, because she was unable to return to work after her leave ended.
Robert filed a lawsuit which included a claim under the ADA. The lower court granted summary judgment on the county’s behalf on that claim, 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 a fairly lengthy – but ostensibly temporary – period of time in 2004 was not evidence that those duties were nonessential. According to the Tenth Circuit, to give weight to that argument would “perversely punish employers for going beyond the minimum standards of the ADA.”
The Court next addressed the fact that Robert would have been qualified to return to work had she been able to perform her job duties with a reasonable accommodation. However, the only potential accommodation that would have allowed her to do that in July 2006 was a reprieve from the essential functions of the job. The Court pointed out that while a brief leave of absence for medical treatment or recovery can be a reasonable accommodation, 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 those duties. Without that, 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.” Although the Court did not specify how “near” that future must be, it cited a case in which a six-month leave request was too long to be a reasonable accommodation. The Court then held that Robert’s needed accommodation exceeded both criteria for reasonableness, because Robert failed to provide any definite date on which she could return to field work, which would require her to be fully mobile.
One of the critical issues here is that the case turned on the “essential functions” of Robert’s position, and her failure to provide evidence that she could undertake those functions within a reasonable time frame. Importantly, the Court gave primary consideration to the employer’s definition of the “essential functions,” pointing to the written job description in which those functions were listed. The importance of written job descriptions in this scenario cannot be overstated. Employers should assure that such descriptions should be reviewed regularly to assure that they are accurate, objective, and thorough, in order to allow their use in cases such as this one.