In a recent decision that provides some guidance and assistance to employers dealing with ill and injured employees on medical leave, the US Court of Appeals for the Tenth Circuit held that it was an undue hardship for an employer to grant a temporary but indefinite reprieve from performing an essential job function after an employee had exhausted all of her FMLA leave. Robert v. Board of County Commissioners of Brown County, 2012 WL 3715311 (10th Cir. August 29, 2012).
Catherine Robert began supervising felony offenders in Kansas' Twenty–Second Judicial District in 1995, and she became a Brown County employee when it assumed control of the program in 2003. Her role as an Adult Intensive Supervision Officer required her to oversee adult offenders in an effort to minimize recidivism, facilitate reentry into society, and protect the community. Her job description listed eighteen “essential functions,” including performing drug screenings, coordinating with service providers, ensuring compliance with court orders, and testifying in court. In sections on working conditions and location, the document notes that the job requires “considerable fieldwork ... throughout the 22nd Judicial District,” “visits in less than desirable environments,” and “potentially dangerous situations in field/office contacts.”
Robert began to experience severe pain in her back and hips in January 2004. Her condition was eventually diagnosed as sacroiliac joint dysfunction. She scheduled surgery for her condition in April. In the meantime, walking became impossible, and she used crutches and later a wheelchair to get around. She continued to work from the office, though some adjustments were necessary; for example, she participated in court hearings by telephone.
In the weeks immediately preceding her surgery, and again during her recovery, Robert worked from home by auditing case files for closed cases. During this time, she was unable to visit offenders at their homes or in jail, and she was similarly unable to supervise drug and alcohol screenings. As a result, other employees took up those tasks for her. According to Venice Sloan, Robert's supervisor, the increased workload for other employees created tension and ultimately contributed to one employee's resignation. Robert returned to the office in July or August 2004 and was eventually able to resume all of her work activities.
Her good health, however, was fleeting. In November 2005, she fell down the stairs in the Brown County courthouse. Shortly thereafter, symptoms of her joint dysfunction returned, leading her to schedule another surgery for April 2006. As before, Robert continued to come in to the office prior to the operation, but she was unable to perform site visits, testify in court, or supervise screenings. Once again, her co-workers had to assume those duties.
Because Robert was injured at work, Brown County's workers' compensation insurance covered her medical care. Linda Naylor was assigned to manage Robert's claim and act as a liaison between Robert's care providers and Brown County. Naylor was not an employee of the county; rather, she worked for a case management provider that was contracted by a third-party insurance administrator used by the county's insurance provider.
Surgery went as planned. Robert's FMLA protected leave expired on July 5, 2006. On July 17, Robert and Naylor attended a follow-up appointment. After examining Robert, the surgeon predicted that she might be able to walk with a cane in two to three weeks, and unassisted two weeks after that. He told Robert that she could work on a computer from home, and prepared a “Work Status Report” to this effect.
At this point, Robert had exhausted her FMLA, sick, and vacation leave, and Sloan recommended that the Board terminate her employment. On July 31, the Board voted to terminate Robert. Robert then sued the county, the commissioners, and Sloan. She claimed among other things that her termination constituted unlawful retaliation for her use of FMLA leave and discrimination under the ADA. The district court granted summary judgment in favor of the defendants on all claims. Robert then appealed to the Tenth Circuit.
The Court’s Analysis
To state a prima facie case for discrimination under the ADA, Robert had to establish that: (1) she is disabled; (2) she was qualified, with or without reasonable accommodation, to perform the essential function of her job; and (3) her employer discriminated against her because of her disability. The court focused on the second element.
To determine whether Robert is a “qualified individual,” the court considered two criteria: “First, we must assess whether her impairment prevented her from performing the essential functions of her job. If so, we must then determine whether she might have nevertheless been able to perform those functions if the county provided her a reasonable accommodation.”
Robert conceded that she could not work outside her home when Brown County terminated her. But supervising offenders in-person was clearly an essential function of her position. So too was conducting visits to their homes and workplaces. On this score, the court deferred to Sloan's testimony that supervising offenders in person was a “necessary” component of her position. “Our conclusion is bolstered by the fact that Robert's absence caused strain in her small office. Furthermore, Sloan testified that Robert dedicated fifty percent of her time to these site visits when she was able; even according to Robert, the portion was twenty-five percent.” The offender supervision officer job description further confirmed the importance of fieldwork to her position.
The court refused to view the county's willingness to excuse Robert's inability to perform site visits as evidence that those duties were nonessential:
To be sure, we have often said that the essential-function inquiry turns on “whether an employer actually requires all employees in the particular position to satisfy the alleged job-related requirement.” But a plaintiff cannot use her employer's tolerance of her impairment-based, ostensibly temporary nonperformance of essential duties as evidence that those duties are nonessential. To give weight to such a fact would perversely punish employers for going beyond the minimum standards of the ADA by providing additional accommodation to their employees.
Thus, the court held that “Brown County's willingness to retain Robert in 2004 despite her inability to perform site visits for several months does not make those visits nonessential.”
Indefinite Temporary Reprieve from Essential Function Unreasonable
The court noted that although site visits and other out-of-office work were an essential function of her position, Robert would be nonetheless qualified if she could have performed those duties with a reasonable accommodation. “In light of Robert's complete inability to perform site visits at the time of her firing, the only potential accommodation would be a temporary reprieve from this essential function. Our precedents recognize that a brief leave of absence for medical treatment or recovery can be a reasonable accommodation.”
The court reasoned that there are two limits on the bounds of reasonableness for a leave of absence:
The first limit is clear: The employee must provide the employer an estimated date when she can resume her essential duties. Without an expected end date, an employer is unable to determine whether the temporary exemption is a reasonable one. The second is durational. A leave request must assure an employer that an employee can perform the essential functions of her position in the “near future.” Although this court has not specified how near that future must be, the Eighth Circuit ruled in an analogous case that a six-month leave request was too long to be a reasonable accommodation.
The district court held that Robert's needed accommodation exceeded both limitations on reasonability: It found that Robert failed to provide a definite estimate of her ability to resume site visits and that any further exemption following six months of temporary accommodation would be unreasonable as a matter of law. According to the Tenth Circuit, “because we take the district court's view of the first matter, we do not address the potential that the accommodation exceeded reasonable durational bounds.”
According to the court, there was 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 did not suffice to assure the county that she would then be able to perform site visits and other fieldwork. The court noted that Robert herself recognized that 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.
The court concluded that “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.” For that reason, the court held she was not a qualified individual under the ADA and that her claim of discrimination failed.
No FMLA Retaliation Occurred
Robert asserted that her termination was also unlawful retaliation for her use of protected medical leave. To establish a prima facie case of FMLA retaliation, an employee must prove that she: (1) availed herself of a protected right under the FMLA; (2) was adversely affected by an employment decision; and (3) that there was a causal connection between the two actions.
The first two elements were undisputed. The court assumed without deciding that the brief interval between the expiration of Robert's leave and her termination was sufficient to establish the causal connection. The burden then shifted to the county to offer a legitimate reason for her termination, and if it did, then back to Robert to present evidence to suggest the stated reason was pretextual.
The court concluded that Robert did not undermine the county's legitimate reason for her termination: that she failed to return to work with the required release after she exhausted her FMLA leave. Robert insisted that Brown County should have known the doctor released her to work from home as of July 17. However, no individual—neither Robert, her husband, Naylor, nor the doctor—testified that he or she delivered the release to Sloan. And Sloan maintained she did not receive it. And according to the court, “even if Sloan had received the release, Brown County was not required to allow Robert to work from home after her FMLA leave expired.” Thus, the court concluded that “Robert could not return to her job, with or without reasonable accommodations, when she was terminated on July 31, and certainly not when her FMLA leave ended on July 5.”
The Robert case reinforces an employer’s right to declare an employee unqualified under the ADA if the employee cannot perform an essential job function with or without reasonable accommodation for an indefinite or unreasonable period of time. Requiring employees and physicians to provide specific information on this issue can be a valuable tool in managing medical leaves effectively.