Some employers use a formal or informal system that allows employees to donate accrued leave time to one another, usually in the context of a serious personal or medical problem. In a recent unpublished decision, the Tenth Circuit Court of Appeals held that an employee cannot rely on a voluntary leave donation program to shield her from the employer’s need for her to be at work.

In Winston v. Ross, the plaintiff was a federal government employee with a serious thyroid condition that caused her to miss an increasing amount of work. Her employer granted a number of accommodations following FMLA leave, including flexible hours and a reduced working schedule. Despite these measures, the employee’s attendance continued to decrease, resulting in a conclusion by the employer that she was incapable of performing the essential functions of her position due to her inability to regularly attend work. She eventually sued, claiming failure to accommodate under the ADA and Rehabilitation Act.                               

After the district court granted summary judgment for the employer, the plaintiff appealed, claiming in part that she should have been allowed to use her agency’s voluntary leave donation program as an accommodation for her absences. The Tenth Circuit rejected this argument, noting that the leave program did not allow her to attend work, and therefore perform the essential functions of her job. Because she could not work for extended periods of time, she was not a qualified individual under the ADA, and transfer of paid leave from other employees to her had no impact on this conclusion.

In recent years, voluntary leave donation programs have somewhat fallen out of favor. Some employees claim they feel pressured by co-workers to donate leave time in circumstances where they would prefer to keep their own paid time off. Regardless, the availability of such donated leave time will not impact the employer’s eventual accommodation decision.