Many employers have programs allowing employees to donate their own time off to another employee with serious medical or family issues.  A dilemma often faced by employers with these policies is whether continued use of such donated time means the employee is not performing the essential function of attendance.  On the one hand, the employee is not violating any attendance rules if the time off is donated under the program.  On the other hand the employee may be taking an excessive amount of time off that is disruptive to the employee’s performance of essential job functions.

In Winston v. Ross, (10^th Cir. Feb. 27, 2018), the Tenth Circuit Court of Appeals affirmed the dismissal of an employee’s claims that her employer discriminated against her because it ended her participation in a leave transfer program that allowed employees to donate annual leave when another employee needs additional leave for a medical emergency.  After Ms. Winston exhausted her leave under the Family and Medical Leave Act (FMLA), her employer approved her participation in the leave transfer program for a year.  The employer also provided Ms. Winston with a flexible work schedule and temporary reductions in her hours due to her need for additional time off.  The employer denied her request to telework two days per week because she could not perform her duties as a receptionist handling visitors and routing calls from home.

Among other things, Ms. Winston claimed she was discriminated against on the basis of her disability when her employer terminated her participation in the leave transfer program.   The Court concluded that Ms. Winston’s job required physical attendance.  While she did not dispute that attendance was an essential function of her job, she claimed that her participation in the leave transfer program was a necessary accommodation for her disability, which enabled her to work.  One could argue that is contradictory since her continued participation in the program would mean that she could take more time awayfrom work.  The Court noted that “even if participation in the program allowed Ms. Winston to be absent from work, it does not follow that such participation ensured she could perform the essential functions of her job, including physical attendance.”  In other words, using leave donated by other employees would allow her to be away from work for health reasons, but it would not enable her to fulfill the essential function of physical attendance.

Employers who have, or are considering, some sort of leave or PTO donation program should be sure to include language that allows the employer discretion to approve or deny participation in the program based on the particular facts and circumstances.  Even having a cap on the amount of donated time the employee receives may result in situations where the employee is unable to perform the essential function of attendance.  Instead, employers should retain the ability to review each situation on a case by case basis and decide whether continued participation in the program is an effective and reasonable accommodation that would achieve the objective of allowing the employee to perform the essential functions of his or her job.