In Robert v. Board of County Commissioners of Brown County, Kansas, No. 11-3092 (10th Cir. 2012), the plaintiff, Catherine Robert (“Robert”), had worked as supervisor of released adult offenders for ten years when she developed sacroiliac joint dysfunction. After a lengthy leave of absence, including the period authorized by the Family and Medical Leave Act (“FMLA”), Robert remained unable to perform all of her required duties, and she was terminated. The Tenth Circuit Court of Appeals (the “Court”) held (among other things) that Robert’s termination did not constitute discrimination in violation of the Americans with Disabilities Act (the “ADA”).
One issue in the case was whether Robert could perform the essential functions of her job with reasonable accommodation, an element of a prima facie case of discrimination under the ADA. The Court said, on this issue, that the only potential accommodation would be a temporary reprieve from the job’s essential functions. A brief leave of absence for medical treatment or recovery can be a reasonable accommodation. However, there are two limits on the bounds of reasonableness for a leave of absence. First, the employee must provide the employer an estimated date when she can resume her essential duties. 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.” For example, a six-month leave request is too long to be a reasonable accommodation. Here, Robert failed to provide an estimated return date, and any further absence following six months of absence-likely to occur here- would be unreasonable as a matter of law. Consequently, Robert failed to meet both limits. As such, the Court concluded that-in this case- a leave of absence is not a reasonable accommodation, and therefore Robert cannot perform the essential job functions with any reasonable accommodation.