July 20, 2017
In a decision with important ramifications for temporary staffing agencies and employers that use their services, the 10th U.S. Circuit Court of Appeals has held that the Americans With Disabilities Act (ADA) does not entitle a temporary employee diagnosed with breast cancer to a leave of absence as a reasonable accommodation for her disability.
According to the opinion, defendant Kelly Services, a temporary staffing agency, hired the plaintiff, Kristin Punt, and assigned her to a customer as a receptionist working 40 hours per week. Her physical presence in the lobby/reception area during business hours was defined as an “essential function” of the position.
While on this assignment, Punt was diagnosed with breast cancer. She began missing work for medical appointments, among other reasons. Six weeks into Punt’s assignment, she emailed her manager at Kelly that she could not come to work that week, that she was concerned about the customer’s reaction to her taking time off, and that she anticipated requiring more time off for future surgery and radiation treatment. Punt, however, provided no details about the anticipated time off or the expected duration of her impairment.
The customer promptly requested that Kelly replace Punt because it “needed an employee that’s going to be able to show up and fulfill the needs of the position.” Kelly did so and offered Punt a few other assignments, which she declined. In violation of Kelly policy, Punt never contacted Kelly to tell the company she was available or wanted additional assignments.
Punt sued, alleging, among other things, that Kelly and its customer violated the ADA by failing to accommodate her by allowing her to take the week off as well as future time off for medical appointments and procedures. The 10th Circuit affirmed summary judgment against Punt, holding that her request to miss a week of work and miss unknown days in the future was “not plausibly reasonable on its face.” The court noted that physical attendance in the workplace is an essential function of most jobs.
In addition, the court explained that a reasonable accommodation is one that “presently, or in the near future,” will enable the employee to perform the essential functions of the job. The employee must inform the employer of the expected duration of the impairment, which Punt did not do. Therefore, her proposed accommodation was not reasonable.
In addition to the vague nature of Punt’s request for leave, the 10th Circuit emphasized her unique role as a temporary employee. The court observed that the ability to report to work is especially critical for temporary employees. Punt’s request, the court observed, would have meant either letting the receptionist job sit vacant, or filling it with a “super-temporary employee or employees” who would sporadically fill in. The ADA, the court held, did not require such burdensome arrangements. Notably, Punt did not cite a single case in which a leave of absence was found reasonable for a temporary employee.
The 10th Circuit’s decision is a common-sense victory for staffing agencies and the employers that use their services. It suggests that while leave is a form of reasonable accommodation, it is not automatically required, and the circumstances of both the request and the employee’s job should be considered in deciding whether it is reasoanble. Even employers that do not use temporary staffing arrangements can benefit from the 10th Circuit’s reminder that attendance is an essential function of most jobs and that employees who request leave as an accommodation are required to identify the expected duration of their impairment.
For more information on this topic, please contact the authors, your McGuireWoods contact, or a member of the firm’s labor and employment group.