In Punt v. Kelly Services,1 the Tenth Circuit Court of Appeals unanimously held that a temporary employee’s request for an undetermined leave of absence was not a reasonable request for accommodation under the Americans with Disabilities Act (ADA). This case may be welcome news for employers using temporary workers because it acknowledges that an employee’s temporary status can be considered in determining the reasonableness of an accommodation request.
To meet some of its staffing needs, GE Controls Solution (“GE”) entered into a staffing agreement with Kelly Services (“Kelly”), under which Kelly provided and assigned temporary employees to GE on an as-needed basis. Pursuant to this agreement, GE could ask Kelly to remove any of its temporary employees from their assignment at GE for any reason. Kelly also had the right to cancel an employee’s assignment with GE.
In October 2011, Kelly assigned the plaintiff to GE to fill a temporary, full-time receptionist position, and she worked there from October 24, 2011 through December 5, 2011. Shortly before she began her assignment, the plaintiff had a mammogram which showed suspicious microcalcifications in her right breast. In November 2011, while working at GE, the plaintiff learned she had breast cancer.
At the start of her assignment, GE informed the plaintiff that she was to work a 40-hour work week. The “essential functions” of her receptionist job included being physically present at the reception desk during business hours each day to great and direct visitors. During the six weeks that the plaintiff was assigned to GE, however, she never worked a full 40-hour week. The plaintiff was absent from work on six occasions—three of which corresponded with documented medical appointments, two of which corresponded with holidays, and one of which was unexplained. The plaintiff was also late to work on three occasions, and left work early on three occasions. While the plaintiff was gone from work, another Kelly temporary employee who was assigned as an administrative assistant assumed the plaintiff’s receptionist duties.
On December 5, the plaintiff emailed her point-of-contact at Kelly and informed her that she would not be coming to work that week. In a follow-up email, the plaintiff explained that she would need additional time off for tests and for radiation treatments. Consequently, GE advised Kelly that it wished to end the plaintiff’s assignment.
Tenth Circuit Decision
The Tenth Circuit held that the plaintiff’s request for leave was not reasonable under the ADA. In evaluating the reasonableness of the plaintiff’s request, the court explained that “the term ‘reasonable accommodation’ refers to those accommodations which presently, or in the near future, enable the employee to perform the essential functions of his job.” The court further noted this was particularly true “in light of [the plaintiff’s] position as a temporary employee whose physical presence at the workplace was the most essential function of her job.”
Moreover, the court reasoned, because the plaintiff did not inform Kelly or GE of the expected duration of her impairment, the plaintiff’s requested accommodation would have required GE to either go without a receptionist, or to accept a “super-temporary” employee to fill in for the plaintiff whenever she needed time off, while simultaneously allowing the plaintiff to return to her temporary position whenever she felt up to attending work. In light of the temporary nature of the plaintiff’s assignment, the amount of leave that she had already taken, the additional amount she requested, and the uncertainty of how much more leave she would need, the Tenth Circuit agreed with the district court’s conclusion that the plaintiff’s accommodation request was unreasonable as a matter of law.
The Tenth Circuit’s decision in Punt reaffirms that attendance can be an essential function of a temporary employee’s job, and that an employee’s temporary status is an important factor in evaluating the reasonableness of an accommodation request under the ADA. The court in Punt, however, did not consider how long the plaintiff's temporary assignment was expected to last in determining whether her request for leave was reasonable, and the same reasoning relied upon in Punt may not apply to temporary positions with longer durations. Employers that utilize contingent workers and staffing companies should therefore continue to exercise caution in considering accommodation requests from temporary employees.