Friday, July 7, 2017

Punt v. Kelly Services: When is a temporary worker with a disability entitled to leave as a reasonable accommodation?

In Punt v. Kelly Services, No. 16-1026 (10th Cir. July 6, 2017), the Tenth Circuit held that Kristin Punt was not unlawfully denied a reasonable accommodation when her temporary assignment as a receptionist with GE Control Solutions was terminated because she was taking too much time off as a result of her disability.

The court observed that, when Punt's assignment with GE was terminated after six weeks, she had never worked the full 40-hour work week; she had been absent from work on at least four full regular workdays, had arrived late three times, and had left early three times. Punt's assignment was terminated shortly after she notified Kelly Services, the temporary staffing firm that placed her with GE, that she would need to take a full week plus an additional unknown amount of time off for medical tests, appointments, and radiation treatments related to her breast cancer.

The Tenth Circuit concluded that Punt's request for leave was not a "plausibly reasonable accommodation": 
Under all of the circumstances of this case, and especially in light of Plaintiff's position as a temporary employee whose physical presence at the workplace was the most essential function of her job, we are persuaded the accommodation Plaintiff requested from GE was unreasonable as a matter of law.
I agree that Punt's status as a temporary worker is key. Although leave can be a reasonable accommodation, it seems that the question of whether the amount of leave requested is reasonable may turn on how long the person requesting leave will be working for the employer. For instance, if someone is selected for a four-week assignment and then requests that she be granted leave for three of those four weeks, it seems obvious that the request is unreasonable.

I also agree with the court's suggestion that the law presumably should not require an employer to accommodate a temporary employee by hiring a "supertemporary" employee. If a regular employee needs disability leave, the employer may have an obligation to accommodate that employee by providing leave, but it may not have an obligation to accommodate a temporary employee who needs disability leave when filling in for a regular employee who is on disability leave. Otherwise, the obligation to provide leave might never end. 

On the other hand, even if Punt's status as a temporary employee is relevant, I don't understand why the court thought it significant that Punt's physical presence in the workplace was the most essential function of her job as a receptionist. If a worker requests leave, how is the reasonableness of the request affected by whether the job must be performed in the workplace? In either case, the worker won't be doing the job for the duration of the leave, and that is what appears to be relevant in determining whether leave can be considered a plausibly reasonable accommodation in a particular case.

Moreover, I think the court mistakenly suggests that all temporary workers are in the same boat. The court concluded that, given the temporary nature of Punt's assignment, the amount of leave that Punt had already taken, the additional amount she requested, and the uncertainty of how much more leave she would need, her request was per se unreasonable. Unfortunately, the court gave no consideration to how long Punt's temporary assignment was expected to last. (And the expected length of the assignment is not clear from the decision). Some temporary assignments are open-ended, and some may be repeatedly renewed. If Punt's temporary assignment was expected to be of a long duration, then her request for leave might have been no less reasonable than that of a regular employee.

In short, while temporary status may be relevant in evaluating whether leave might be a reasonable accommodation in a particular set of circumstances, the Tenth Circuit's rejection of Punt's particular claim rests on shaky ground.

This blog reflects the views solely of its author. It is not intended, and should not be regarded, as legal advice on how to analyze any particular set of facts.