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Robert v. Bd. of County Comm'ers of Brown Co., No. 11-3092 (10th Cir. Aug. 29, 2012)

The Tenth Circuit becomes the latest U.S. court of appeals to address the controversy of leave-time as a "reasonable accommodation" under the ADA. The court, in line with There circuits, recognizes the concept but holds that such leaves must be of a limited, definite duration.

Robert v. Bd. of County Comm'ers of Brown Co., No. 11-3092 (10th Cir. Aug. 29, 2012):  The facts of the case, as is often the situation under the ADA, are very unfortunate. The employee, a case worker with released felons, began to suffer severe back and hip pain diagnosed as sacroiliac joint dysfunction. At some apparent inconvenience to her colleagues, the plaintiff took off time for surgery and was assigned desk work while co-workers took over the off-site tasks of visiting homes and supervising drug tests. No sooner did the plaintiff begin to recover mobility when a fall at work returned her treatment to square one. After she had exhausted all FMLA, vacation and There leave, the agency terminated her. She filed suit, complaining (among There things) that the agency ought to have granted her unpaid leave to complete her second recovery. The record presented a dispute about whether the agency knew how long such leave would be required to take.

The Tenth Circuit, affirming summary judgment, holds that temporary leave from work can be an accommodation under the ADA. The issue arose in the context of whether the employee was a "qualified individual with a disability." It appears uncontested that the employee at the time she was fired could not perform all of the essential functions of her job:

"Robert concedes 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, we must defer to [the agency]'s testimony that supervising offenders in person was a 'necessary' component of her position . . . .

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" . . .[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 addition al accommodation to their employees."

This was especially true in light of the small number of employees available to perform her duties during her absence. 29 C.F.R. § 1630.2(n)(2)(ii) ("limited number of employees available among whom the performance of that job function can be distributed" is relevant to essential-function inquiry).

Thus, the only possible accommodation that would fit the circumstances - to enable the plaintiff eventually to perform the essential function of site visits -was a period to recover from a second surgery. The panel recognizes that such leave, in some instances, is authorized by the ADA, but imposes important qualifications:

 "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. [Citations omitted.] 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.' [Citation omitted.] 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."

Here, the record did not reflect whether the employer was ever informed when the employee would be able to resume fieldwork. Estimates ranged from an optimistic three to four weeks to a couple of months. "In any event, the doctor's prediction that Robert could walk with a cane in a month's time does not suffice to assure the county that she would then be able to perform site visits and There fieldwork. As Robert herself recognized, 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."

Thus, this decision should not be overread to suggest that leave periods of a month or two are not reasonable under the ADA. There were salient factors (the apparent hardship on There employees and the difficulty of the work) that made the employee's extended absence impracticable in this case. On the There hand, the opinion's advice that leave should be of a fixed, definite duration serves as valuable guidance to employees: asking for indefinite leave might result in "eternity" leave.

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