Appeals Court: 6 Months Leave Is Not a Reasonable ADA Accommodation

By Eric B. Meyer

Check out this opinion (Hwang v. Kansas State University) from the Denver-based Tenth U.S. Circuit Court of Appeals.

If you’re representing an employer and happen to be teeing up a dispositive motion where the issue is whether six months of leave is a reasonable accommodation, then look no further.

Generally, six months of leave is not a reasonable accommodation.

Background of the case

Here are the basic facts:

Plaintiff-employee has cancer (disability) and defendant-employer has a six-month leave policy. Employee takes six months of leave, after which, she requests an additional semester of leave, promising to return in the Summer. Employer says no and offers employee long-term disability (essentially firing her). Employee sues under the Rehabilitation Act (the equivalent of the Americans with Disabilities Act), alleging that her employer should have accommodated her with the additional leave.

Employer wins. (Although, you probably figured that out already).

But, not only did the employer win, it was on a motion to dismiss, rather than a motion for summary judgment. So, you know the lower court and the affirming appellate court came out guns blazing.

What the Appeals Court ruled

Quotables from the the 10th Circuit’s blistering opinion:

“Must an employer allow employees more than six months’ sick leave or face liability under the Rehabilitation Act? Unsurprisingly, the answer is almost always no.”
“It perhaps goes without saying that an employee who isn’t capable of working for [six months] isn’t an employee capable of performing a job’s essential functions — and that requiring an employer to keep a job open for so long doesn’t qualify as a reasonable accommodation.”
“[R]easonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.”
“[I]t’s difficult to conceive how an employee’s absence for six months — an absence in which she could not work from home, part-time, or in any way in any place — could be consistent with discharging the essential functions of most any job in the national economy today.”
“[I]t is difficult to conceive when requiring [six months of leave] from an employer might qualify as a reasonable accommodation.”
“The Rehabilitation Act seeks to prevent employers from callously denying reasonable accommodations that permit otherwise qualified disabled persons to work — not to turn employers into safety net providers for those who cannot work.”
“In the first place, the EEOC manual commands our deference only to the extent its reasoning actually proves persuasive….And the sentence Ms. Hwang cites doesn’t seek to persuade us of much. It indicates that an employer ‘must’ modify a leave policy if the employee ‘needs’ a modification to ensure a ‘reasonable accommodation'”
“[T]he EEOC seems to agree with our conclusion that holding onto a non-performing employee for six months just isn’t something the Rehabilitation Act ordinarily compels.”
“[A]n inflexible leave policy can serve to protect rather than threaten the rights of the disabled — by ensuring disabled employees’ leave requests aren’t secretly singled out for discriminatory treatment, as can happen in a leave system with fewer rules, more discretion, and less transparency.”
“[T]he leave policy here granted all employees a full six months’ sick leave — more than sufficient to comply with the Act in nearly any case.”

Dayyyyyyyyum!

But, there are a few caveats

But before you dust off those no-fault policies…

The Tenth Circuit did not go so far as to say that leave of any length is no longer a reasonable accommodation. Indeed, other parts of this opinion (and common sense) should have you re-thinking that:

[A]n employee who needs a brief absence from work for medical care can often still discharge the essential functions of her job. Likewise, allowing such a brief absence may sometimes amount to a (legally required) reasonable accommodation so the employee can proceed to discharge her essential job duties. After all, few jobs require an employee to be on watch 24 hours a day, seven days a week without the occasional sick day.”

Also, the court pointed out that “no-fault” leave policies with very short leave periods may not comport with the ADA. Similarly, a sham policy would fail too.

But the big takeaway here is that we have another court holding that six months of leave is generally not a reasonable accommodation.

This was originally published on Eric B. Meyer’s blog, The Employer Handbook.