On July 6, 2017, a three-judge panel of the United States Court of Appeals for the Tenth Circuit reiterated that physical attendance in the workplace is an essential function of most jobs and emphasized this is particularly true for temporary workers filling short-term vacancies.

In Punt v. Kelly Services, the plaintiff, Kristin Punt, was a temporary worker assigned to work for GE Controls Solutions (“GE”) as a receptionist.  The essential functions of that job included being “physically present at the lobby/reception desk during business hours.”  However, during her six weeks in the position, Ms. Punt was absent or tardy on multiple occasions, often due to medical appointments related to a recent diagnosis of breast cancer. GE terminated her assignment after she informed GE on a Monday morning that she planned to be absent the entire week and would need unspecified additional time off for “some appointments and tests” and “five times of radiation.”

Ms. Punt filed suit under the Americans with Disabilities Act, alleging failure to accommodate a disability.  In the Tenth Circuit, the plaintiff must make a prima facie showing that (1) she is disabled, (2) she is “otherwise qualified,” and (3) she requested a plausibly reasonable accommodation.  The burden of production then shifts to the employer to present evidence either (1) conclusively rebutting one or more elements of the prima facie case, or (2) establishing one of the affirmative defenses, such as undue hardship.  The Tenth Circuit affirmed summary judgment for GE, concluding as a matter of law that Ms. Punt’s request for time off was not plausibly reasonable on its face.

The court first restated its prior holdings that “physical attendance in the workplace is itself an essential function of most jobs” and that “an employee’s request to work from home is, as a matter of law, unreasonable if the employer has decided that physical presence at the workplace is an essential function of the position.”  The court then noted time off can be a reasonable accommodation when it will enable the employee to perform the essential functions of the job “in the near future” and the employee is therefore “required to inform the employer of the expected duration of the impairment.”  The court concluded Ms. Punt’s requested accommodation was unreasonable on its face because she did not inform GE of the expected duration of the impairment or how much time she would miss, and because her request would have required GE to go without someone in the receptionist position or accept “a super-temporary employee” who would fill in for the fill-in worker.  “Particularly for temporary employees,” the court observed, “the ability to report to work consistently is a necessary part of the job.”

Bottom Line:

Employers should make clear in their job descriptions and requests for temporary workers that physical attendance in the workplace is an essential function of the job.  This is particularly true in the Tenth Circuit.

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