Extended Leave Not a Reasonable Accommodation under the Rehabilitation Act, 10th Circuit Holds

by Ballard Spahr LLP

A recent appellate court ruling may affect the ability of the Equal Employment Opportunity Commission (EEOC) 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 (ADA) and Rehabilitation Act. In Hwang v. Kansas State Univ.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. Ms. Hwang cited to the EEOC guidance on reasonable accommodations to support her position that inflexible maximum leave policies violate the Rehabilitation Act—a 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 accommodations—typically things like adding ramps or allowing more flexible working hours—are all about enabling employees to work, not to not work."

Because Ms. 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 work—not to turn employers into safety net providers for those who cannot work." The court determined that Ms. 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 Ms. 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 leave—more 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.


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.

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