It is no secret that attendance at work is an essential function of most jobs. As explained by a recent decision from the Tenth Circuit Court of Appeals, Punt v. Kelly Servs., No. 16-1026 (10th Cir. July 6, 2017), an employee’s failure to just show up can be fatal to failure to accommodate claims under the Americans with Disabilities Act.
The case involved a temporary employee for Kelly Services (Kelly) who was assigned to work at GE Controls Solutions (GE). Under the agreement between Kelly and GE, GE could ask the temp agency to remove a temporary employee, for any reason. Kelly could cancel an employee’s assignment at GE at any time and for any reason. The temporary employee’s employment application stated that the duration of any assignment she accepted depended on the third party’s needs, and could be cancelled at any time. The employee agreed that she was “responsible for maintaining regular contact with Kelly and failure to do so will indicate I have either voluntarily quit or am not actively seeking work.”
Beginning on October 24, 2011, Kelly assigned the employee as a receptionist at GE. Prior to the appointment, the employee learned that she might have breast cancer and, in November 2011, learned that she did in fact have breast cancer. The employee alleged that she told GE and Kelly employees about her diagnosis.
As part of her receptionist assignment, the employee was to work from 7:30 a.m. to 4:30 p.m., Monday through Friday. In the six weeks that followed her assignment, the employee never actually worked a 40-hour work week, was absent six times (two holidays and three medical appointments). She was also late to work on three occasions and left early three times. Another temporary employee filled in while the plaintiff missed work.
The employee had a medical appointment on December 5. She called her contact at Kelly and said that she would not be coming to work on December 5 or the entire week. Kelly contacted the employee to discuss concerns about missing time at GE. The employee told Kelly that she would call her back, but did not do so. Kelly followed up again, this time asking the employee to contact Kelly as soon as possible so that Kelly could update GE. In her response to Kelly, the employee lied about her December 5 appointment and said she needed more time off for tests and treatments. Later that day, GE told Kelly that it wanted to end the temp’s employment because she was not showing up for work and GE needed an employee to be there and perform the job. The employee alleged that she was told that GE wanted to terminate her “because [she] would be very unreliable having cancer.”
The employee was terminated for missing a considerable amount of work while she was being treated for breast cancer. She told Kelly that she needed one week, plus an additional undetermined amount of leave, for tests, appointments, and radiation treatments. After her termination from GE, the employee never contacted Kelly for another assignment and turned down an assignment Kelly offered.
The employee sued, claiming violations of the Americans with Disabilities Act and the Genetic Information Nondiscrimination Act. For the ADA claim, the employee alleged that Kelly and GE failed to accommodate her disability. The district court granted summary judgment in favor of both defendants. To prevail on her failure to accommodate claim, the employee was required to show that she was disabled, otherwise qualified, and requested a reasonable accommodation.
The Tenth Circuit Court of Appeals affirmed in a decision that contains some failure to accommodate basics. The court concluded that Punt’s request to not come to work for an entire week “was not plausibly reasonable on its face” under the facts of the case. Furthermore, “an employee’s request to be relieved from an essential function of her position is not, as a matter of law, a reasonable or even plausible accommodation.” In Punt, “[n]either the employee’s past behavior nor her vague request for more time off” supported her claim that she would return to work. The appellate court focused on the employee’s failure to tell Kelly or GE how long she expected the impairment to last. This failure, according to the court, doomed the plaintiff’s claims. Indeed, “[p]articularly for temporary employees, the ability to ‘report to work consistently [is] a necessary part‘ of the job.”