Are Inflexible Leave Policies Lawful After All? One Court Leaves Employers Salivating

by Franczek Radelet P.C.
Contact

when-is-enough-plenty-orange.jpgWhen it comes to leave as a reasonable accommodation after FMLA leave is exhausted, employers have been conditioned to simply believe:  inflexible leave policies bad, flexible leave policies good.  In fact, many of us have become so good at this conditioning it would make Ivan Pavlov one happy guy [you know, the guy who conditioned his dog to salivate when food was presented].  

Now, a court is telling us that inflexible leave policies might actually protect disabled individuals in the workplace?  Tell me more.

The Facts

Grace, an assistant professor at Kansas State University, was a good instructor who was having quite a difficult year.  After signing a one-year contract to teach but before fall classes started, she received news that she had cancer and required treatment.    She requested and was granted a six-month leave of absence. As that leave period drew to a close and spring semester was about to begin, she asked for more time off, promising to return by the summer term.

One hurdle stood in Grace’s way: the University’s inflexible leave policy limiting employees to no more than six months of leave.  When Grace could not return, KSU terminated her employment.  Grace sued, complaining that denying her more than six months’ leave violated the Rehabilitation Act (a statute identical in all respects to the ADA).

The Ruling

The trial court quickly dismissed Grace’s legal claims and a federal appellate court reviewing the decision agreed with the dismissal.  Why?  The appellate court explained it this way.  If an employee needs a “brief” absence from work, it may be “legally required” so that the employee can perform their essential job duties.  However, anything longer likely is not defensible:

It perhaps goes without saying that an employee who isn’t capable of working for so long 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. After all, reasonable accommodations — typically things like adding ramps or allowing more flexible working hours — are all about enabling employees to work, not to not work.

So, how do you draw a line between a “brief” respite and a leave period that is “so long”?  Initially, it depends on the essential duties in question, the nature and length of the leave sought, and the impact on fellow employees. For example, “taking extensive time off may be more problematic, say, for a medical professional who must be accessible in an emergency than a tax preparer who’s just survived April 15.”

This case is chalk full of so many juicy one-liners that it might be the ADA’s version of The Godfather.  [Well, not really, but you know how excited I can get about this stuff.]  

Judge for yourself the court’s musings:

It’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. Even if it were, it is difficult to conceive when requiring so much latitude from an employer might qualify as a reasonable accommodation.

Or this one:

[Grace's] is a terrible problem, one in no way of her own making, but it’s a problem other forms of social security aim to address. 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.

And it even found a way to turn the EEOC’s own words on itself:

The [EEOC] expressly states [in its enforcement guidance on reasonable accommodations] that an employer does not have to retain an employee unable to perform her essential job functions for six months just because another job she can perform will open up then. An employer doesn’t have to do so much, the EEOC says, “because six months is beyond a reasonable amount of time” . . .  Here then the 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.  (My emphasis)

Dang!  Glad I was not on the other side of that smack down.  Read the opinion here (pdf): Hwang v. Kansas State Univ.

Inflexible Leave Policies Actually Protect the Disabled?

The court didn’t stop there, suggesting that an “inflexible” six month leave policy actually tends to protect the rights of the disabled, reasoning that these policies ensure that “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.”

As a result, the court determined that the six-month leave policy maintained by KSU was “more than sufficient to comply with the Act in nearly any case.”

Insights for Employers

Before employers start breaking out Marlon Brando’s whiskey and amaretto, let’s not crown this decision just yet.  On one hand, its reasoning is of tremendous value to employers, who collectively have been yearning for guidance on how much leave they have to provide their employees before termination becomes an option.  In short, what we learn from this decision is that a six-month leave of absence will almost always satisfy the requirements of the ADA/Rehabilitation Act.  That’s good news.

On the other hand, this is the opinion of one appellate court (covering the states of Colorado, Kansas, New Mexico, Oklahoma, Utah, Wyoming).  If you placed this issue in front of a handful of other appellate courts, an employer could end up with a far different result — or one that was not nearly as precise as this court’s guidance.  Even this Corleone-like court hedged its bets a bit, finding that some leave is usually required, and employers must avoid sham leave policies that are not consistently applied.

Here are my takeaways from this latest court decision:

  1. Remain committed to the ADA’s interactive process.  As this court pointed out, a lengthy six-month absence is a generous one, but when that time is up, we still have an obligation to the ADA’s interactive process. Doing so helps us understand what the employee might need to return to work (even if it’s a brief leave of absence or an alternative leave of absence), and it acts as a strong repellent to EEOC-initiated conciliation and litigation.
  2. Consistently apply your “no-fault” leave policies.  The employer won here because there was no evidence that it treated employees differently when it came to extended leaves of absence.  In your own situation, are you granting one employee an extended leave of absence, but denying similar leave to another without any basis?  If so, that’s a problem, and this kind of evidence likely would have influenced the court differently here.
  3. Me thinks the EEOC better issue some guidance in this area.  Employers have been waiting years for reasonable guidance from the EEOC on leave as a reasonable accommodation.  If we get more court decisions like this one, they will render whatever guidance the EEOC  issues meaningless, as the EEOC’s take will have been trumped by far more meaningful (and better-reasoned) guidance from the courts.

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Franczek Radelet P.C. | Attorney Advertising

Written by:

Franczek Radelet P.C.
Contact
more
less

Franczek Radelet P.C. on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.