Tenth Circuit Holds Undetermined Leave is Not a Reasonable Accommodation

The Equal Employment Opportunity Commission’s position is that attendance and leave policies which call for termination after an employee has been absent for a definite period of time, as applied to disabled individuals, violates the Americans with Disabilities Act (ADA). In its view, extended leaves, even as long as six months or a year, may be a reasonable accommodation. And, the agency offers little guidance on how employers should determine how much leave is “reasonable.”

A recent Tenth Circuit Court of Appeals decision, however, offers some assistance. Robert v. Board of County Commissioners of Brown County (10th Cir. 2012). The court ruled that a county employee, who, because of back surgery and chronic joint problems, was unable to perform the essential functions of her job, was not entitled to unknown or indefinite leave. The court held 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.

The court found that the employee could not perform a number of the 18 essential functions set out in her job description. The county’s temporary removal of some requirements in the past did not mean that they were “nonessential.” The court said to hold otherwise would “perversely punish employers for going beyond the minimum standards of the ADA.”

The court determined that the only possible accommodation was, paradoxically, a leave to exempt her from some essential job functions. While a leave of absence for medical treatment or recovery can be a reasonable accommodation, there are limits—notably that the employee provides a likely date on which he or she will be able to resume work. While not specifying how much leave must be allowed, the court approvingly cited a case in which a six-month leave request was considered too long to be a reasonable accommodation. Because the employee could not provide a definite date on which she could return to her full range of duties (with accommodation, if needed), the only potential accommodation was an indefinite reprieve from essential job functions and the court held that such an accommodation is unreasonable as a matter of law.

Takeaways: 1) Job descriptions defining essential functions are critical in assessing whether a reasonable accommodation can be provided, and 2) Employers must initiate and document the interactive process used to evaluate the employee’s restrictions and the availability of leave as a reasonable accommodation. If an employee fails to provide an estimated return to work date or some indication that the employee will be able to resume work in the “near future,” then the employer is likely to prevail in an ADA claim.

The Tenth Circuit has jurisdiction over Colorado, Kansas, New Mexico, Oklahoma, Utah, and Wyoming.