Tenth Circuit: A Flexible Schedule is NOT A Reasonable Accommodation When A Job Requires Regular Attendance

Contributed by Karuna Brunk

On May 8, 2013, the United States Court of Appeals for the Tenth Circuit affirmed the judgment of the district court and held that if a job requires punctual attendance, a flexible work schedule is not a reasonable accommodation. 

Rebecca Murphy filed a suit against her former employer Samson Resources Company alleging that Samson violated the Americans with Disabilities Act and the Family Medical Leave Act.  Murphy worked for Samson as an accounting assistant.  During her tenure at Samson, Murphy began experiencing migraine headaches that caused her to leave work.  To accommodate her impairment, Samson allowed Murphy to make up for her missed time.  However, by April 2008, Murphy had a negative balance in her paid time off based on her leaving work. 

On June 19, 2008, Murphy applied for intermittent FMLA leave, and Samson approved her application.  She also received Short Term Disability leave that required her to submit a doctor’s certification explaining her absence.  Murphy provided the doctor’s notes from her neurologist that only covered until November 20, 2008.  On November 21, 2008, Murphy informed Samson that she would submit a new doctor’s note, but she never did.  On December 1, 2008, Samson terminated her employment. 

The district court summarily dismissed Murphy’s case and held that one of the essential functions of Murphy’s job at Samson was regular and punctual attendance because of the time sensitive nature of Murphy’s tasks.  Therefore, the district court found that Murphy could not actually perform this essential function of the job because she was leaving work constantly.  On appeal, Murphy did not dispute that punctuality was an essential aspect of her job, but she argued that a jury could have concluded that she was qualified for her job because Samson could have reasonably accommodated her through a flexible work schedule. 

The Tenth Circuit agreed with the district court.  The Court especially found it persuasive that Samson had already permitted Murphy to have a flexible schedule and make up missed work, but the arrangement caused performance issues and led to Murphy being unable to make up for time she missed.  Additionally, the Court found that a leave of absence was not a form of reasonable accommodation.  An employee could take time for medical care, but the employee must provide an expected duration of the impairment.

The Tenth Circuit also found that Samson had not retaliated against Murphy for taking FMLA leave.  You can find the court’s full opinion here

The big take-aways for employers from the Tenth Circuit decision:

  • Although you have an obligation under the ADA to engage in a discussion regarding reasonable accommodation, it is perfectly reasonable for you to expect your employees to be able to perform the essential functions of the job, including actually being at work. 
  • Additionally, a permanent medical leave is not a reasonable accommodation under the ADA.  An employee may request a temporary leave, but the employee is obligated to notify you of when he or she anticipates an end to the leave.