ADA claims shrouded by the ‘leaves’ of the FMLA
A recent decision from the 10th Circuit illustrates the importance of job descriptions, the need for awareness of potential Americans with Disabilities Act (ADA) issues when employees take leave under the Family and Medical Leave Act (FMLA), and the scope of an employer’s duty to an employee who seeks a leave of absence as an accommodation.
Employee’s health creates need for leave
Catherine Robert was a 10-year employee of Brown County, Kansas, and was responsible for supervising adult criminal offenders. The essential functions of her job required her to perform “considerable fieldwork,” visit less-than-desirable environments, and face potentially dangerous situations in field and office contacts.
Robert began to suffer severe pain in January 2004 and eventually needed a wheelchair to get around. The county accommodated her by permitting her to attend hearings via telephone and to work from home auditing files. She had surgery in April 2004 and returned to work in July or August of that year. She was permitted to work from home during part of that time even though it put tremendous strain on the county because other employees had to pick up the work she couldn’t do, such as making field visits and attending hearings. After her health issues flared up again, she had a second surgery in April 2006.
Robert was on FMLA leave from the time of her second surgery until July 5, 2006. On July 17, she attended a follow-up doctor’s appointment to check on her continuing recovery from the surgery. The physician prepared a report stating that she might be able to walk with a cane within two to three weeks and perhaps walk unassisted two weeks after that. However, the report wasn’t provided to the county, which was under the impression that, in the best-case scenario, she wouldn’t be able to return to work for at least a month.
On July 31, 2006, the board of county commissioners voted to terminate Robert. Despite acknowledging her “at-will” status, she later asserted discrimination claims under the ADA and retaliation claims under the FMLA. Her case eventually ended up before the 10th Circuit.
Leave of absence as a reasonable accommodation
To prove her ADA claim, Robert had to demonstrate that she could perform the essential functions of her job with a reasonable accommodation. It was undisputed that she couldn’t perform her essential job functions without a reasonable accommodation because she couldn’t work outside her home at the time of her termination and supervising offenders in person was an essential function of her job.
Because Robert was completely unable to perform site visits and in-person monitoring, the only potential accommodation was a temporary reprieve from those essential functions. The court noted that while a brief leave of absence for medical treatment or recovery can be a reasonable accommodation, there are two important limits:
- The employee must be able to provide an estimated date on which she can resume her duties.
- The leave request must assure the employer that the employee will be able to perform the essential functions of her position “in the near future.”
Robert’s proposed leave failed to meet either prong. First, she couldn’t provide a definite date for her return to work. Additionally, even if she could provide a definite return date, she still couldn’t have performed her essential job functions in the “near future” because she would have returned using a cane and wouldn’t have had full mobility, something that would have been essential in dealing with adult felony offenders.
Notably, the fact that Robert was unable to perform the essential functions of her position after the expiration of her FMLA leave also served as the employer’s legitimate nondiscriminatory reason for terminating her employment. She couldn’t demonstrate that her termination was in retaliation for her protected leave if she wasn’t qualified to perform her essential job functions. Robert v. Board of County Commissioners of Brown County, Kansas, 2012 WL 3715311 (10th Cir., August 29, 2012).
Here are some practical lessons for employers from this decision:
- Job descriptions. Ensure that you have up-to-date and accurate job descriptions—they are the best evidence of the essential functions of an employee’s position. The court in this case relied on the job description almost exclusively in determining whether Robert was a qualified individual.
- Relationship between the FMLA and the ADA. Consider whether an employee taking leave under the FMLA for her own serious health condition will also be entitled to a reasonable accommodation under the ADA upon her return. This employer was able to defeat the employee’s ADA and FMLA claims by having a strong job description and demonstrating that she couldn’t perform the essential functions of her position.
- Leaves of absence. In determining whether an employee may be entitled to a reasonable accommodation, consider whether an extended leave of absence might qualify. This will depend on the nature and duration of the employee’s health condition. Of course, employees aren’t entitled to indefinite leaves of absence, so if a leave of absence is an appropriate accommodation, the employee should be able to provide an estimated date of return and indicate when she will be able to perform the essential functions of her position.