A recent appellate court ruling may affect the ability of the Equal Employment Opportunity Commission to challenge "inflexible" employer leave policies, policies that result in the termination of employees who are unable to return to work after the fixed leave period, as a violation of the Americans with Disabilities Act and Rehabilitation Act. In Hwang v. Kansas State University, the U.S. Court of Appeals for the 10th Circuit ruled that an employer's adherence to an inflexible six-month maximum leave policy did not violate the Rehabilitation Act.
The ruling could slow the momentum that the EEOC has gathered over the past several years in its aggressive pursuit of employer maximum leave policies that do not take into account additional leave as a form of reasonable accommodation. Due to the EEOC's widely publicized successes in securing multimillion-dollar settlements and consent decrees, many employers heeded the EEOC's suggestions and guidance by modifying maximum leave policies to provide for appropriate flexibility regarding the termination of employees who are out on extended medical leaves.
In Hwang, the 10th Circuit affirmed the lower court's dismissal of an action brought by Grace Hwang after Kansas State University denied her accommodation request for additional leave for cancer treatment beyond the six months she received under the university's policy. Hwang cited to the EEOC guidance on reasonable accommodations to support her position that inflexible maximum leave policies violate the Rehabilitation Acta position the EEOC has openly taken.
The 10th Circuit found the EEOC guidance did not support that contention, noting that the guidance only addresses an employer's obligation once it is clear that leave policy modification is a reasonable accommodation. The court found that the guidance did not answer the antecedent question of when is a modification to an inflexible leave policy legally necessary to provide a reasonable accommodation? Since the EEOC has stated that six months of leave is reasonable, the court concluded that an employer ordinarily is not required to retain a non-performing employee for longer than that time under the Rehabilitation Act. After all, reasonable accommodationstypically things like adding ramps or allowing more flexible working hoursare all about enabling employees to work, not to not work.
Because Hwang was not able to work at all for more than six months, the court found that she was unable to perform the essential functions of her job even with a reasonable accommodation. [I]t is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation . . . . [t]he Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to worknot to turn employers into safety net providers for those who cannot work. The court determined that Hwang failed to show that her request for additional leave was reasonable.
The court also held that there is nothing inherently discriminatory in having an inflexible six-month leave policy, noting that such policies can actually protect rather than threaten the rights of the disabled. The court did state that its rejection of Hwang's claim does not render inflexible policies entirely immune from attack. For example, policies would be subject to an inference of discrimination if they provide unreasonably short periods for sick leave or are really a sham because the employer provides additional leave to non-disabled individuals. Conversely, the Kansas State University leave policy granted all employees six months of leavemore than sufficient under the Rehabilitation Act.
What does this mean for employers?
Hwang involved the Rehabilitation Act, but courts often analyze those claims consistent with those brought under the ADA, the private sector counterpart. Employers should nonetheless proceed thoughtfully when considering leave extension requests. Although this ruling could foretell a major shift for ADA inflexible leave litigation involving challenges to employer denials of requests for extended leave, it is too early to tell whether courts outside the 10th Circuit will follow suit. Employers should heed the court's warning that leave policies may be discriminatory if they provide an unreasonably short benefit or are applied inconsistently. However, longer leaves of absence, of six months or more, or leaves for an unlimited duration during which the disabled employee is entirely unable to work, may not be considered a reasonable accommodation.
Steven W. Suflas is managing partner of Ballard Spahrs New Jersey office, where he concentrates on the representation of management in all phases of labor and employment matters. He can be reached at 856.761.3466 or firstname.lastname@example.org
Meredith C. Swartz, an associate in Ballard Spahrs Philadelphia office, represents employers in all aspects of labor and employment law. She can be reached at 215.864.8132 or email@example.com.
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