August 8, 2017
Authored by: Anthony George
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